Public Bill Committee

[Mr Christopher Chope in the Chair]
[Continuation from column 756]

On resuming

Maria Miller: I beg to move amendment 407, in clause 187, page 106, line 9, after the, insert health and.

Christopher Chope: With this it will be convenient to discuss amendment 408, in clause 187, page 106, line 9, at end insert
(d) raising the achievements of disadvantaged children as defined in the relevant Childrens Trust Boards Children and Young Peoples Plan..

Maria Miller: These are the final amendments to clause 187. They address two of the most important issues facing Sure Start childrens centres: having health as a true partner, and focusing on giving children from the most disadvantaged families the best possible opportunity to achieve their potential. On health being the elephant in the room, amendment 407 clearly places health on the inspection report that Ofsted will produce. I am sure that the Minister will argue that health is a subset of well-being, but if our language were a little more direct in legislation we might achieve better outcomes for children.
The final amendment would ensure that childrens centres have a pivotal role in helping the most disadvantaged children, and any Ofsted report regime would have to have the outcomes for disadvantaged children at the heart of what they are doing. This is an important opportunity to send clear signals about the outcomes that we expect from Sure Start childrens centres. The purpose of these two amendments is to probe the Governments intentions, because the information about how the new Ofsted inspection regime will work is patchy.

Sarah McCarthy-Fry: The hon. Lady has anticipated some of my comments. I certainly agree that it is important that Ofsted inspections and reports cover health outcomes, and they are already covered by new section 98B(2)(c), which requires Ofsted reports on children's centres to assess the contribution they make to improving the well-being of young children. Under the Childcare Act 2006, which the clause amends, well-being is defined explicitly as including
the physical and mental health and emotional well-being"
of children.
We are well aware of the greater gain to be had from effective support for the most disadvantaged families, and I agree that Sure Start childrens centres have a particular role to play in raising the achievements of children from disadvantaged backgrounds. We have been very clear from the beginning that local authorities must improve the well-being of young children in their area while reducing the inequalities that exist between them. It follows, therefore, that in asking Ofsted to inspect children's centres, we want to understand the impact that they are having on the outcomes for the poorest children. I expect Ofsted to draw on a variety of sources of information and evidence when coming to their opinion of how effectively a centre is performing.
Officials and Ofsted are currently working to design an inspection regime for Sure Start childrens centres that will work within the current inspections frameworks. The finer details will be settled following a range of pilot inspections that Ofsted plans to conduct shortly. We will certainly consider whether any specific provision for disadvantaged children should be made within the regulations governing the inspection framework. I hope that the hon. Lady will be satisfied with that.

Maria Miller: I thank the Minister for her comments. I am reassured that she will bring the matter to Ofsteds attention. It is important to establish ways of ensuring that the most disadvantaged children receive the support that they need and deserve. At the moment, the system is not doing what it could to support them, and raising the matter with Ofsted and perhaps addressing it in regulations with a specific requirement to examine the work of childrens centres in supporting disadvantaged children will achieve a better result for them. I await further information on how Ofsted intends to take the matter forward. I beg to ask leave to withdraw the amendment.

Amendment, by leave withdrawn.

Clause 187 ordered to stand part of the Bill.

Clauses 188 and 189 ordered to stand part of the Bill.

Clause 190

Free of charge early years provision: budgetary framework: England

Maria Miller: I beg to move amendment 526, in clause 190, page 109, line 25, leave out subsection (1) and insert
( ) A local education authority in England must allocate funding for free of charge early years provision for a funding period outside a maintained school out of the authoritys individual schools budget for the period..

Christopher Chope: With this it will be convenient to discuss amendment 525, in clause 190, page 110, line 18, at end insert
( ) The Code of Practice on the provision of free nursery education places for three- and four-year olds shall cease to apply in a local authority area until that local authority has introduced a single funding formula for free of charge early years provision..

Maria Miller: Many organisations have been battling for consistency and funding throughout the maintained and PVI sectors in child care for many years, and the Bill recognises that there has not been a level playing field in funding since the early years entitlement was introduced in 1998. Amendment 526 is important and would ensure that all local authorities allocate funding for that entitlement through the individual schools budget, thus helping to ensure a fair and sustainable approach to that important funding stream. The Bill could be open to interpretation, and perhaps the Minister will help us with that. If there is to be a consistent approach to fundingI am sure that she wants that as much as I doamendment 526, which is a probing amendment, might provide the necessary clarity. I hope that the Minister will respond positively to the intention of the amendment.
An important change in early years funding is tucked away in the Bill. I heard what the Minister said about some sort of thread holding that together, but I am finding it difficult to see that thread. With so little time for debate in Committee, perhaps those who have been battling with the issue for some time could be forgiven for thinking that the Government want to make the changes as inconspicuous as possible.
Ensuring that maintained nurseries are paid in the same way as the PVI sector, based on participation, is a long-overdue change, and the need for clause 190 raises concern about the Governments previous analysis of the financial pressures on PVI providers over the past decade. Back in 2005, my right hon. Friend the Member for Maidenhead (Mrs. May) highlighted this issue for the Minister who was then responsible for the matter, and is still responsible for it, the Minister for Children, Young People and Families, the right hon. Member for Stretford and Urmston (Beverley Hughes), and received the response that the facts do not stack up and that her analysis was incorrect. I assert that the facts do stack up and that some nursery funding has shown signs of inequity for years. The Governments own analysis underlines that point, because the DCSFs benchmarking data on early years expenditure, which was collected rather late in the day and included in the Librarys excellent briefing note for this Bill, clearly shows a stark funding difference between maintained nurseries and the PVI sector. Indeed, funding for a maintained nursery place is £6.90 an hour versus £3.72 an hour in the PVI sector. In 87 per cent. of local authorities, the funding level for the PVI sector was between £3 and £4. I fail to see how the Government can assert that there was a level playing field.
It should come as little surprise to the Committee that as a result of the problems with finance the number of child care places that have closed has increased by 48 per cent. since 2003. Indeed, in 2007-08, for the first time ever, more child care places closed than opened. More than 190,000 places closed, which is an indictment of the financial situation in the sector.
Amendment 526 would help to ensure a level playing field in future, and would clear some of the Bills ambiguity on whether local authorities have a choice to pay PVI providers from the independent schools budget. The amendment would oblige local authorities to do so, and if they are obliged to have a single funding formula, they should be obliged to pay the nursery grant from the ISB. Without doing so, local authorities would not be able to meet their requirement to have a single funding formula, so I hope that the Minister will respond positively to the amendment.
Amendment 525 offers a practical way of ensuring that PVI nurseries are given the help that they need now. I have outlined the inequity that has been in the system, so the Committee should not be surprised that in a Laing and Buisson survey in 2008 almost two out of three nurseries said that the free entitlement funding did not cover their costs of delivery. Two out of every three nurseries in the survey said that, and that has been the situation for some time. Indeed, in 2006 the National Day Nurseries Association found that one third of all nurseries lost more than £5 per session. A single funding formula to address those issues is not due to be in place in all local authority areas until 2010. The Government do not need me to point out that if that trend continues, the cost of replacing lost places will be considerable.

David Laws: Will the hon. Lady clarify whether amendment 525 would allow top-up fees to be charged?

Maria Miller: I thank the hon. Gentleman for his intervention. The intention behind amendment 525 is to allow nurseries to ensure that they cover their costs. If that includes charging a supplementary fee before the new funding regime is in place, we must consider whether that is preferable to allowing nurseries to go out of business, which the figures that I gave suggest would happen. The financial pressure has been increasing over time, and has been made worse by the recession. A report in January from the NDNA showed that 40 per cent. of nurseries have bad debts. The report also highlighted that occupancy is down in one third of nurseries with one in 10 reporting a drop of 11 per cent. or more. Further work by the Federation of Small Businesses shows that about 200 PVI nurseries could close in 2009.
The hon. Gentleman asked whether top-up fees were involved, and no hon. Member wants that, but we must ask whether we want those organisations to go out of business because the Government have ignored the core structure of the financing for far too long, or whether we want parents and children to have the stability that they need in child care and to help nurseries to stay in business. We would all like entitlement to be free, but the evidence is that the money is not going to the providers as intended, and there is a gap between now and when the single funding formula comes into place to fix the problems.

David Laws: Is the hon. Lady not concerned that the consequences of her policy, which seems to be to allow top-up fees, could undermine the universal entitlement for some youngsters in particular parts of the country?

Maria Miller: I thank the hon. Gentleman for his contribution. I believe that that is already the case. The evidence suggests that some organisations already charge incremental costs to try to keep their businesses together. We can either ignore the problem, or try to give them some practical help. I am concerned that the funding stream has not worked as it should have done. The recent research into the true cost of delivering child care in the PVI sector should have been done years ago.

David Laws: I am grateful to the hon. Lady, who has been very patient. Is she implicitly rejecting the option of slowing down the roll-out of the increase in the number of hours that are allowed free, and saying that the top-up mechanism would be her preference in relation to that other option?

Maria Miller: No, that is not what I am saying. The two issues are linked, but not entirely mutually inclusive. Other issues concerning increased flexibility cause far more of a problem for some providers than others. I am not saying that we would delay the roll out, but if the hon. Gentleman were to read some of the parliamentary questions that I have asked on that point, he would be aware that the Government are less than sure how to finance it. Some of the more ambitious statements made at the Labour party conference last year by the Prime Minister may not necessarily be achievable in a reasonable time frame.
Temporarily suspending the 2006 code of practice, which forbids parents to be charged, would help by recognising the extreme pressure that some nurseries are under. As I said earlier, we could bury our heads in the sand, or we could face up to the reality of helping those people. After all, those nurseries provide the lions share of the nursery places that the Government have relied upon to deliver their free entitlement. Suspending the code of practice will allow us to help keep them in business in these difficult times. The amendment would give private nurseries breathing space to ensure that they can deliver the free hours and the stable child care that parents and children need and deserve. The code of practice could come into force once a single funding formula has been adopted by all local authorities.

Sarah McCarthy-Fry: As the hon. Lady said, amendment 525 seeks to disapply the code of practice for the provision of free nursery education places to three and four-year-olds in a local authority area until the local authority has introduced a single funding formula. Although I share the view that we want the single funding formula implemented quickly, and all local authorities will come under that obligation from April 2010, I am concerned that the amendment would have some unintended and undesirable consequences by affecting childrens ability to benefit from the free entitlement and the safeguards provided by the code of practice. Free entitlement is just that; it is free at the point of delivery. Top-up fees would bar some children from gaining access to provision because of unaffordable costsin particular, disadvantaged children, who would have the most to gain from the offer.
Independent research in 2008 showed that funding at national level is sufficient. In the clause, however, we are seeking to implement the single funding formula as quickly as possible; as I said, it comes in from April 2010.

David Laws: Did I hear the Minister correctly when she said that existing funding is adequate to roll out the full 15-hour entitlement?

Sarah McCarthy-Fry: The 15-hour entitlement does not come into effect until September 2010. The research done in 2008 was on the existing offer.

David Laws: As the period the Minister mentions is within the existing spending review, she must have made an assessment of whether the funding is in place to deliver the 15-hour entitlement on that time scale.

Sarah McCarthy-Fry: We have an additional £590 million to support the extra two and a half hours being flexibly delivered from September 2010.
Amendment 526 seeks to make it a legal requirement for local authorities to allocate funding to private, voluntary and independent providers of the free entitlement from the individual schools budget. We want local authorities to do that. The current separation of funding for PVI providers from that of the maintained providers leads to unjustifiably different levels of funding, and a perception that the education received is not the same. We want to ensure that the funding provisions for PVIs are integrated with the funding provisions for the education of pupils in maintained nursery schools and classes and the rest of the school funding system.
I shall explain the difference in funding between maintained nursery schools and PVIs. Nursery schools get higher funding because they are schools and must therefore have head teachers. The rates between maintained nursery classes and PVIs are fairly comparable.
We believe that the requirement can be better achieved through regulations, which would allow for the necessary flexibility to make changes to the funding framework without the need to change primary legislation. We have already shared indicative regulations with the Committee, setting out our intentions in that regard. I therefore invite the hon. Member for Basingstoke to withdraw the amendment.

Maria Miller: I thank the Minister for her reply. I note that she did not refer to her analysis of the cost of delivering child care and to the work done by the Department showing the difference in funding between the PVI and the maintained sectorsor the data on the shortfall in funding faced by so many providers to which I drew her attention. We will want to come back to the matter.
Although I am reassured by the Ministers comments on the need for local authorities to ensure that all local authorities are using the independent schools budget as a way of distributing the money, thus removing that flaw in the system, she ignores at her peril the significant issues faced by the PVI sector. The Government made their policy on free entitlement work through the tenacity and hard work of the private and voluntary sectors, but Ministers fail to appreciate that the cost structures the PVI sector has to deal with are significantly different from those in the maintained sector.
I shall not press the amendment to a Division, but many Members will want to return to the matter at a later stage because it is causing great concern to many parents and providers in our constituencies. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Maria Miller: I beg to move amendment 524, in clause 190, page 109, line 30, at end insert
(2A) The regulations made under subsection (2) must promote the maintenance of a range of different types of providers of services, including those from the private and voluntary sector..

Christopher Chope: With this it will be convenient to discuss amendment 523, in clause 190, page 110, line 18, at end insert
(4A) Regulations made under subsection (4) must specify that consultations about the determination of the amount of financial assistance must include a requirement for private, voluntary and independent early years providers outside a maintained school to be consulted..

Maria Miller: These are two final amendments on nursery funding. All families have different child care needs. The range of child care options in the country reflects the fact that parents want to care for their children in different ways. Evidence suggests that far from increasing the diversity of child care, which one would expect given the Governments rhetoric on flexibility and trying to meet the needs of parents, choice has declined significantly. Between 2003 and 2006, the proportion of privately owned nurseries has declined from 78 to 65 per cent. Indeed, the number of child minders has decreased by nearly 40 per cent. since 1997. The latest statistics from Ofsted show that nearly 1,600 child minders left the profession between September and December 2008; there have been two years of continuous decline.
The amendment would ensure that local authorities have to take into account the importance of diverse provision of child care. Yes, they have to ensure the necessary amount of child care in the area, but there is no requirement to ensure diversity. It is important that we do not drift into only one form of child care being available, because parents have differing needs, live in very different circumstances and have differing work responsibilities. Choice must be available to ensure that children get the care they need.
Child minders have an invaluable role in providing specialist care for disabled children. I have seen at first hand child minders with special training dealing with children who have particularly challenging needs; they do so in ways that centre-based nurseries may find difficult. Looking after those children will allow their parents to get back to the workplacethe Minister will be aware of the correlation between poverty and parents who have children with disabilities. It is important to protect and nurture diversity in child care.
Parents who are cautious about leaving a child in a centre-based nursery may be able to build a relationship with a child minder. That choice must be available. The amendment tries to embed the importance of a diverse cross-section of child care into local authorities thinking in a way that does not happen at the moment; the figures certainly suggest that it does not.
On amendment 523, so many of the problems that we have faced in the funding of the early years entitlement could have been avoided if there had been effective consultation with the PVI sector. I apologise for yet again mentioning the importance of effective communication with that sector; I do so because communication has been so ineffective in the past. There are no provisions in the Bill to acknowledge the importance of involving the PVI effectively in future. The sector is now involved in local schools forums, but despite its overwhelming importance in providing early years places, its voice in those forums is merely one of many. If the Minister spoke to some of the PVI providers who are representatives on local schools forums, as I have done, she would understand that point clearly. It is simple: the Government could not have delivered the free entitlement without the PVI sector, because 65 per cent. of full day care provision is owned by the private sector and 24 per cent. is owned by the voluntary sector. The Government are on a knife edge and they ignore it at their peril.
The amendment requires local authorities actively to engage and consult PVI providers when determining the allocation of funds. PVI providers are the most knowledgeable about the costs relating to the service they provide, so it is only right that they are engaged in the costing process.
I hope that the Minister will consider the amendments positively. I am only sorry that there is not more time to discuss nursery funding in the Committee, because it is of great concern to so many people, both parents and providers, throughout the country.

Sarah McCarthy-Fry: I shall deal first with amendment 523, which would specify that private, voluntary and independent providers must be consulted about the determination of financial assistance for the free entitlement. We already have in place a consultative process for the funding of all education, including the free entitlement, through the local schools forums that the hon. Lady mentioned, which must include representation of private, voluntary and independent providers.
The current regulations for schools forums state that all local authorities that include non-school members on their schools forum must have appointed one or more persons to represent private, voluntary and independent providers. That is bolstered by section 165 of the Education and Skills Act 2008, which requires all schools forums to have non-school members and, by implication, PVI representation. Draft regulations are about to go to consultation, which, when laid, will require the remaining schools forums that do not have PVI representation to have it from January 2010. However, that is likely to apply to less than 10 schools forums.
We expect all local authorities as a matter of good practice to consult all stakeholders where significant changes are made that are likely to affect their interests. Guidance on the creation of the single funding formula specifically stresses the need to work in partnership with all providers. We expect that good practice to continue for the single funding formula and early years providers from whichever sector.
Amendment 524 would require local authorities, in building their funding formulae for the free entitlement to early years provision for 3 and 4-year-olds, to support and promote a range of different types of provider, including those from the private and voluntary sector. That already happens and is clearly set out in the statutory guidancein paragraph 5.1 on page 16 of the code of practice. Local authorities should ensure that a suitably diverse range of providers, including schools, nursery schools and classes, private and voluntary sector providers, independent schools and accredited child minders, can deliver the free entitlement in line with parental choice. The guidance is currently being revised to reflect the flexible extension to the offer but that element will not change. Indeed, the intention behind the changes we are making in the Bill is to strengthen that diversity, and we think that the best way to achieve that is through the single funding formula.
With those assurances I hope that the hon. Lady will ask leave to withdraw her amendment.

Maria Miller: I think that I have made my point by raising these two issues. Although I am sure that the Minister is happy with the reply she has given me, I am sure she understands that if things were quite as rosy in the garden and all the provisions were in place already, we would not be experiencing problems.
The figures speak for themselves. We are seeing a decline in the number of child minders and the number of PVI providers in the nursery sector. We cannot ignore the hard facts. We also cannot ignore the fact that although the Minister is entirely right to say that, in theory, provision is already in place to ensure that the PVI sector is consulted about the funding regime, it is not effective. I hope that having raised these points and having elicited the Ministers response, it reinforces for her the fact that we all have to work even harder to make the existing provisions effective for people who are providing an important service.
I will not detain the Committee at present, but it may be necessary to address the issues again in future. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 190 ordered to stand part of the Bill.

Clause 191

Powers in relation to schools causing concern: England

Question proposed, That the clause stand part of the Bill.

David Laws: I welcome the Minister for Schools and Learners to our discussion of the clause.

Jim Knight: I am grateful to the hon. Gentleman for welcoming me back to the Committee to look after the clause. I wondered whether he wanted to take the opportunity to congratulate my hon. Friend the Member for Portsmouth, North on doing a sterling job of dealing with more than nine hours of scrutiny.

David Laws: Indeed, I did. I also want to congratulate the Minister on being one of the members of the Committee who was not absent without authorisation this morning. Before the Under-Secretary leaves the proceedings completely, I thank her very much for presiding over such a long sitting today and particularly for doing so with great patience and for taking all the interventions. I congratulate her on not necessarily hitting a huge number of sixes, but on staying at the wicket for a long period and not allowing many balls to get past her. Even though she was to some extent let down by the absence of some of her colleagues this morning, she has done a fine job for her Department and for the Government.
May I also say that it is a great pleasure to see the interest being taken in education today by the Governments Deputy Chief Whip? It is always very encouraging indeed when one finds colleagues trying to improve themselves by taking an interest in areas outside their remit.

Siôn Simon: Can the hon. Gentleman confirm that he is referring to the fact that the Governments Deputy Chief Whip was in the oral evidence sessions on more than one occasion for at least half an hourif not an hour and a halfas I noted at the time? Does he mean to refer to that and did he notice that himself?

David Laws: I do not want to go too wide of clause 191, but I fear either that there is great competition for places in the Government and the education Department or that the Deputy Chief Whip is concerned about the management of parts of the Bill.
To return to the clause, we are coming to an important area of the Bill, which contains not only part 10, but part 11, which deals with complaints. I want to register, because I am aware of the time

Christopher Chope: Order. I interrupt the hon. Gentleman now because clause 191 merely introduces schedule 13. I think the hon. Gentleman intends to speak to the contents of that schedule. If that is so, the time to do that is in the next debate, which will be on the question that schedule 13 be the 13th schedule to the Bill. I hope that the hon. Gentleman will keep his remarks on the clause brief.

David Laws: I certainly will. I merely wanted to draw to your attention, Mr. Chope, and to the Committees attention that the part of the Bill that clause 191 ushers in is important, and that in spite of the late hour it is important that we give it adequate scrutiny. We have the potential next week to cover the other items in the Bill. I realise that this is a detention for Labour Members who were absent without authorisation this morning, but if the Government want to continue our consideration

The Chairmans attention having been called to the fact that fewer than seven Members were present, he accordingly suspended the proceedings.

Other Members having come into the room, and seven Members being present, the proceedings were resumed.

David Laws: I think I had concluded my introductory comments on clause 191. I do not know whether the Minister wants to respond.

Jim Knight: The clause speaks for itself and as you so wisely told us, Mr. Chope, it introduces schedule 13.

Question put and agreed to.

Clause 191 ordered to stand part of the Bill.

Schedule 13

Powers in relation to schools causing concern: England

Question proposed, That the schedule be the Thirteenth schedule to the Bill.

David Laws: As clause 191, which we have debated, makes clear, schedule 13 makes provision for schools that are causing concern in England. Under the schedule and the clause that follows it, important powers fall to the Secretary of State in particular to intervene through local education authorities to tackle school performance and to address teachers pay and conditions warning notices.
I have some questions about the intention behind paragraph 4 of the schedule, which inserts a new section 60A in the Education and Inspections Act 2006. The new section introduces a system of teachers pay and conditions warning notices, as the explanatory notes make clear, which allow LEAs to issue notices to the governing body of maintained schools when the LEA is satisfied that the governing body has failed to comply, or failed to secure compliance by the head teacher, with the provisions of an order under section 122 of the Education Act 2002. The explanatory notes also make it clear that new section 60A provides that if a teachers pay and conditions warning notice is given and after a compliance period the governing body has not complied with it or successfully made representations to the LEA against it, the school will become eligible for intervention.
Rather than hearing from the Minister that the schedule speaks for itself, I want to know why the Government think it important to introduce such powers, what evidence they have that the powers are needed, what problems the Department has identified in the implementation of the teachers pay and conditions document over the past couple of years, and how those cases have been dealt with. In other words, is the power really necessary, is use likely to be made of it and is it worth legislating for?

Jim Knight: Local authorities will for the first time be able to intervene in schools that do not comply with the statutory provisions in the school teachers pay and conditions documentthe STPCD. The document sets out school teachers conditions of employment and places a number of duties on head teachers and others, including that of carrying out the induction performance management of teachers in accordance with relevant regulations.
Those conditions are incredibly important to the standards agenda for a number of reasons. First, we cannot expect our teachers to raise pupil attainment if they have not been inducted into the profession properly. Secondly, if we want schools to play their full part in the heart of the 21st-century system of childrens services they will need a highly skilled and motivated work force who are well led, effectively deployed and able to engage effectively with a range of professionals from across the childrens service spectrum. Thirdly, they are important because statutory requirements are just thatstatutory requirements. They are not optional extras that schools can choose to disregard, just as key stage 2 standard assessment tests are not optional extras.
However, there is evidence that some schools do not comply with all the documents statutory requirements relating to teachers conditions of employment. Although arrangements exist to resolve non-compliance, they are cumbersome and slow. For example, discussions between one school and the local education authority took more than a year, which was extremely burdensome for the local authority and frustrating for the staff. It is for those reasons that we seek new powers for the local education authority and the Secretary of State.

David Laws: I hope that I am not pre-empting the next part of the Ministers speech, but as it seems that he might be nearing the end of it will he specify what non-compliance issues there have been over the past couple of years, and whether any of them are ones from which academies would be exempt?

Jim Knight: On the hon. Gentlemans last point, the STPCD does not apply in academies, so the question does not arise.

David Laws: I was exploring whether any of the non-compliance issues demonstrate a use by maintained schools of some of the flexibilities given by the Government on a statutory basis, and therefore whether the Committee might have a different attitude to those flexibilities than to other abuses of the pay and conditions document from which academies might not be exempted.

Jim Knight: I am sorry, but there are aspects of the hon. Gentlemans intervention that I may have missed. It might help if I tell him of some of the non-compliance of which we have evidence.
In March 2008, the National Association of Schoolmasters Union of Women Teachers did a work-load audit of its members; it reported that 5 per cent. of respondents had been denied planning preparation and assessment time, and 37 per cent. said that they were directed to do activities not related to planning, preparation and assessment in PPA time. In particular, there have been problems with invigilation roles.

David Laws: I am grateful to the Minister for being so patient. Are those identified areas ones in which academies are also exempt?

Jim Knight: We give academy governing bodies the power to innovate in relation to employees terms and conditions; they do not have to abide by national pay and conditions. That is a key plank of academy policy, and one that academy teachers most frequently cite as contributing to transformational change. Academies are exempt from all aspects of the STPCD.
Mr. Lawsrose

Christopher Chope: Order. Is the Minister giving way again?

Jim Knight: No, I do not think that I should give way again, although for one moment I was tempted. Through the device of interventions, I have adequately explained the elements referred to under the schedule. The Committee will note that there are also measures for intervention on the basis of performance, in respect of the power to direct local education authorities to consider issuing a performance warning notice, and for an expansion of the Secretary of States ability to appoint additional governors or direct that there should be an interim executive board.

David Laws: Given the number of important issues under the next clause that we are to discuss, I shall not hover too long over the schedule other than to note that the Government seem to be taking additional powers to direct schools to do things from which some schools are exempt. That raises the same issue that we discussed earlier about the way in which academies have greater curricular freedoms. My questioning of the Government is not because I want to take away those powers, but because of their policy between different types of schools and whether that inconsistency is based on a rational analysis of the needs of schools.

Jim Knight: I will not labour the point long, but when I and my predecessor who had responsibility for academies looked at the individual case for an academy in particular circumstances, one of the things that we examined was how the sponsor would propose using the freedoms that are available to academies in order to do the difficult job of turning around performance. The freedoms in respect of pay and conditions are one of the things that we look at given that they will probably pay more money than the STPCD allows to recruit the very best people to turn around those particular schools.

David Laws: Yes, but I am not sure the Minister has reassured me. He seemed to be saying that the Government are giving freedoms to academies, but looking carefully at how they will use them. That highlights the Governments inconsistent approach to school freedoms and how they are acquired throughout schools. The Government wish to give freedoms and flexibilities to a particular class of school yet are legislating under the Bill for powers to force other schools to do things from which academies are exempt. However, I shall not press the issue to a Division.

Question put and agreed to.

Schedule 13 agreed to.

Clause 192

Power to require LEAs in England to obtain advisory services

David Laws: I beg to move amendment 148, in clause 192, page 110, line 38, leave out the Secretary of State and insert the Office for Standards in Education.

Christopher Chope: With this it will be convenient to discuss amendment 1, in clause 192, page 111, line 10, after are, insert
judged by Ofsted to be.

David Laws: The clause is important. It gives power to the Secretary of State to require LEAs in England to obtain advisory services. This part of the Bill is significant because it is about the mechanisms through which the Government want to ensure school improvement. We had an interesting debate in Committee a few days ago about the Young Peoples Learning Agency and the role of local authorities in securing school improvement. Different views were expressed about whether the Governments approach was right.
I draw attention to an excellent paper produced by Policy Exchange within the past few weeks entitled A Guide to School Choice Reforms, which no doubt the hon. Member for Bognor Regis and Littlehampton will already have read twice, being the assiduous reader that he is. The document draws several lessons from the experiences in the United States, Sweden and the United Kingdom and refers to the importance of accountability to drive school improvement. It states:
Accountability is difficult to manage at a national level: The problem of entirely ignoring local government is that it is very difficult to authorise and oversee schools from central government.
We of course believe that it is important that local authorities have some kind of oversight role of schools and a duty to ensure improvement of school standards within their area. We believe that it is important for Ofsted, working as part of what we think should be a much more powerful education standards authority, then to hold local authorities to account for school improvement and ensure that they actually do their job in a way that, frankly, many local authorities, particularly Labour local authorities in deprived areas, were simply not doing five or 10 years ago, and perhaps even today.
Getting the structures of accountability right is crucial. Ensuring that the decisions taken by Ofsted, local authorities and the Secretary of State are right and fair is extremely important. What we do not want to end up with, in giving these powers to the Secretary of State, is an irrational and unfair system of driving school improvement. Indeed, I would question whether we really ought to have the Secretary of State involved in such matters at all, or whether in a properly functioning system the accountability should not be through local authorities and then through an independent inspectorate.
Some of the problems that arise when central Government are given the power to direct both local authorities and schools are highlighted in the report by Policy Exchange, which shows the dangers of the Government using crude measures to determine how they intervene in schools and therefore implicitly in local authorities. The report highlights specific issues that are relevant to amendments 148 and 1. It deals with what it described as the slightly Orwellian national challenge that has been implemented by the Government over the past year and the 638 schools that were identified in it.
The report states that the definition of failure used by the Government is woefully simplistic, as it assumed, for example, that an inner-city school achieving 25 per cent. good GCSEs on the five A* to C benchmark might be performing worse than a suburban school scoring 35 per cent. That might be debatable on the basis of its intake. Indeed, perhaps more encouraging in terms of making rational decisions about school performance, we recently saw one of the first grammar schools being criticised by Ofsted in respect of its performance, even though its five A* to C figures were extremely good.
Policy Exchange goes on to state that it hopes the school report cards that the DCSF is considering introducing will bring a new level of nuance to school improvement policy that, for now, is based on a crude and arbitrary cut-off point. Some of its concerns reflect our worries about this part of the Bill, which gives powers to the Secretary of State to interfere in respect of local authorities.
The clause amends existing section 62A of the Education Act 2002.

Nick Gibb: I have been trying to resist the temptation to intervene. Would the hon. Gentleman accept that a school in a leafy suburb that has fewer than 30 per cent. achieving five or more GCSEs including English and Maths is a school that warrants intervention from somebody?

David Laws: I would certainly suggest that such a school warrants intervention of some kind, but we are here being invited to give that power of intervention on an extremely vague and unclear basis. I shall come on in a second to look in particular at clause 192 and how it seeks to define failing schools and who it gives power to.

Nick Gibb: If the hon. Gentleman accepts that some intervention is necessary for a school in a leafy suburb that has fewer than 30 per cent. achieving five or more GCSEs at grade A* to C, why then does he not accept that the same intervention should take place if the school is sited in an inner city?

David Laws: The hon. Gentleman misses the point. I am not suggesting that action should not be taken to improve schools with very poor results. However, I do not support a crude approach that suggests that the only way to measure whether schools are doing a good job is based on a 30 per cent. threshold, aside from whether they could be schools that are improving very rapidly from, say, a 5 per cent. starting point, or schools that are achieving 50 per cent. five A* to C grades at GCSE when they should be achieving a figure of 80 or 90 per cent., based on their intake. I am not seeking in any way to undermine the drive for school improvement and I am trying to ensure that local authorities are properly held to account in their job as commissioners. Indeed, it would be a major deficiency in our approach if we were not to hold the commissioners to account, because clearly that has not worked in the past. I am merely questioning how the Government are doing that and whether there is any coherentto use the Committees favourite word todaythinking behind the measure.
The existing power that the Secretary of State has is to require local authorities in England to obtain advisory services where the local authority has schools in either of the categories requiring special measures or significant improvementin other words, Ofsted categories with some form of independent ratification of the extent of the problemand where the LEA does not appear to be effective or likely to be effective in improving those schools or other schools in their area that may be placed in these categories.
Clause 192(2) inserts an additional trigger for the Secretary of States power to require the local authority to obtain advisory services. Proposed new subsection (1A)(a) says that a local education authority in England can have intervention from the Secretary of State where it maintains a disproportionate number of low-performing schools. The questions are how the assessment of low-performing schools is made and whether the assessment has any credibility. Those questions arise because of the definition of a low-performing school in proposed new subsection (1B). It states:
In subsection (1A) low-performing school means a school at which the standards of performance of pupils are unacceptably low.
It will be obvious to most Committee members that that is pretty much a tautology and that it does not help in any way to determine whether the schools really are low-performing.
Somewhat predictably, to deal with that problem, we have new proposed new subsection (1C), which states:
For the purposes of subsection (1B) the standards of performance of pupils at a school are low if they are low by reference to any one or more of the following
(a) the standards that the pupils might in all the circumstances reasonably be expected to attain;
(b) where relevant, the standards previously attained by them;
(c) the standards attained by pupils at comparable schools.
Our concern is that that is all still extremely vague and that we are giving powers to the Secretary of State to intervene in local authorities without there being necessarily a proper basis of proof that those are failing local authorities. If the Secretary of State is to intervene at allwe question whether he or she should be a fundamental part of the system of school improvement, rather than a distant backdrophe or she must intervene on the basis of an objective assessment of whether schools in a local authority area are really failing.
There is clearly a danger that the Government could waste time commissioning or insisting that local authorities commission advisory services when they do not need to do so, or that the current Government or a future Government could decide to target local authorities that are not under their political controlfor example, because they might be embarrassed by the consequences of targeting local authorities that are under their political control.
If we have proposed new subsection (1B) as a tautology and this degree of vagueness in proposed new subsection (1C), there must be serious concerns. Even proposed new subsection (1C)(c), which seems to have a more sensible benchmark embedded in itseeing if
the standards of performance of pupils at a school are low by reference to...the standards attained by pupils at comparable schools
raises all sorts of questions, with which the Government are trying to grapple in the school report card that they are considering developing.
There are some difficult questions. For example, the Government might say that they could compare a number of different schools that have similar numbers of pupils on free school meals to determine whether the standards in one school were unacceptably low. However, the performance of many youngsters who are not entitled to free school meals can often be as poor as those entitled, particularly if those youngsters come from low-income families where the family income may be just above the level of benefits, where the parents may be on the minimum wage or where there may be low educational aspirations. There are also enormous differences in the performance of different ethnic groups. If we chose to compare groups of youngsters in particular schools with a similar free-school-meal composition, we could find that the reasonable expectations for the level of performance might be quite differentfor example, comparing a school with a large number of Asian or Chinese pupils with pupils of a different ethnic background.
We question whether the Government are clear and convincing enough about how they are going to use the powers fairly. So, we have proposed a couple of amendments to the clause, the first to appear in the Bill being amendment 1, which would insert
judged by Ofsted to be
in line 10 of page 111. The clear purpose of the amendment is to ensure that the means for judging whether schools are low performing is not some national challenge-style, crude sledgehammer approach, but is based on a proper appraisal and assessment of the school.
I am willing to acknowledge that the assumption that every school that is failing needs to be assessed and ratified by Ofsted is a challenge. In our discussion the other day I raised the circumstances in which Ofsted might not have a detailed oversight of every school on an ongoing basis, particularly under the new light-touch inspection regime. However, what we are talking about here is intervention against a local authority. It is surely reasonablehighly desirablethat Ofsted should be involved in that evaluation. I would like the Government to be much more rigorous in using Ofsted to hold local authorities to account, particularly as there seems to be such low confidence in Government in the ability of many local authorities to hold schools to account that we have had to establish a YPLA in order to have oversight of the academies as a group.
I would like Ofsted to play an important role in holding local authorities to account. I would like its reports on local authorities to be transparent, up front, given a large amount of publicity and, perhaps, filtered away from the other reports on childrens services, which are dealing with such sensitive issues in the aftermath of Baby P. I want to ensure that the reports on the job that local authorities are doing are based on a sensible and realistic appraisal by an impartial body, not simply on the basis of a political assessment.
Amendment 148 would reinforce that message by deleting the Secretary of State from page 110, line 38, thereby ensuring that the responsibility for determining whether a local authority has
a disproportionate number of low-performing schools
is transferred to Ofsted.
We believe that those changes are sensible and would like the Government to reflect on them. They should certainly do so before developing the performance score card, which might give a more reliable basis for making the judgments that the Minister wants.
I will conclude with some points on clause stand part, because I assume, Mr. Chope, that you would like that to be dealt with in this debate rather than having a separate clause stand part debate. I wish to raise the oversight of academies with the Minister. Although the freedoms that academies have should be protected and granted to more schools, there must be a proper accountability framework for academies. A number of them are already failing. As the academy programme expands, there are bound to be more failures, because there are failures in any school type.
The Policy Exchange report highlights deficiencies in the academy programme. It points out that the DCSF can cancel existing contracts if the academy is put into special measures by Ofsted or if the sponsor is at risk of bankruptcy. If the academy has not infringed those requirements, the DCSF must give seven years notice if it wishes to cancel the contract, as must the sponsor. Given that the number of academies will expand, the Government should consider how they will be held to account under the provisions of the Bill that deal with bodies that hold accountability for individual schools.
In expanding on his partys position the other day on the YPLA provisions, the hon. Member for Bognor Regis and Littlehampton said that in future, federations of academies and other schools are likely to be a necessary driving force in holding schools to account. I am not sure I agree with that, but it raises the question of how those federations should be held to account. When taking these powers to ensure that local authority commissioners do their job, the Government should reflect on how they will hold to account federations of academies or individual academies. They must consider whether their intervention powers are strong enough. We could end up with the Government taking increasingly strong intervention powers for local authorities and maintained schools, while leaving academies unprotected in relation to their performance accountability.

Christopher Chope: The hon. Gentleman is right to anticipate that I do not intend to have a separate clause stand part debate.

Jim Knight: The hon. Gentleman has described the clause and the amendments. The clause will ensure that the Secretary of State can challenge and support local authorities in which the standards in a number of schools remain low, with no evidence from the authority of sustainable improvement. There must be robust evidence of low standards, such as data on attainment and pupil progression in relation to reasonably expected standards using standards previously attained by them or by pupils at comparable schools. Such local authorities will be given the expertise to support and challenge their schools. The advisory services will be external educational experts or a named school that will bolster the local authoritys ability to support its schools.
Under the amendments it would be the role of Ofsted, not the Secretary of State, to judge whether the performance standards of a school are unacceptably low and thus whether the local education authority maintains a disproportionate number of low-performing schools. It is important to remember that the Secretary of State, not Ofsted, is responsible for school standards and is accountable to Parliament on them. As a principle of public law, he has to act reasonably and rationally. He sets the targets and collects data on standards annually. He therefore maintains a legitimate view of standards. Given that accountability, the Secretary of State must have the freedom to take the ultimate decision about when he deems standards in schools to be too low and to direct a local education authority to obtain the services that I mentioned. However, we do not anticipate that he will do that in isolation. I hope that the hon. Gentleman accepts that that goes some way towards his argument.
We intend that the Secretary of State will consult Ofsted, when he deems it necessary, before exercising this power, and he will certainly want to look at the context within which the school operates. The amendments would fetter his ability to act swiftly and effectively and support local authorities to remedy local performance in their schools and take responsibility for ensuring that the local authority targets, which he has set and is accountable to Parliament for, are met.
Academies already have a proper accountability framework. Many of the powers to appoint additional governors are modelled on legislation dealing with schools causing concern. The accountability is there through me and we have the measures that we need in the funding agreement.

David Laws: I think that the Minister said that before using the intervention powers the Secretary of State would always consult Ofsted. It would be useful if he confirmed that. It would also be useful if he said what would happen if Ofsted responded to the Secretary of State, saying that it did not believe that the criteria set out in new subsection (1C)(a) to (c) were met in relation to that local authority. Would the Secretary of State pay any attention to that?

Jim Knight: I said that it is our intention that the Secretary of State will consult Ofsted where he deems it necessary. We do not intend to give Ofsted the power of veto. In the end, the Secretary of State is accountable and he will make the decisions. I hope that, on that basis, the hon. Gentleman will ask leave to withdraw the amendment.

David Laws: We got so close, but did not quite get there. The nub of the issue is not accountability or who triggers the action. I can accept that, given that the Secretary of State is a democratically accountable national politician, he might need to have some role in insisting over the head of the local authority that advisory services should be brought in. The nub of the amendments is whether the judgment and evaluation should be an objective, serious and impartial one made by a credible body on the basis of a careful assessment of school performance, or whether it should be made byif I may say soa here today, gone tomorrow Secretary of State.
Even though the Minister indicated that the Secretary of State might consult Ofsted when he thought it necessary, I do not think that he therefore implied that he would always do so, because the wording suggested that that was effectively optional and it left me with exactly the same concerns that I expressed in my main comments, which are essentially that a Secretary of State can make up his or her own assessment of whether a local authority is doing a good job and can exercise the powers of intervention without a basis in fact. That concern has been triggered by the crude way in which national challenge has operated.

Nick Gibb: Does the hon. Gentleman advocate the post of Her Majestys chief inspector being a life appointment? If he does not, could it not also be argued that the chief inspector is a here today, gone tomorrow official?

David Laws: It might be, were it not for the fact that, as we have seen in the debates on Ofqual and the Qualifications and Curriculum Development Agency, we would wish to ensure that there was a much more independent oversight and appointment process for individuals who are given such important roles. Sadly, the Government have rejected many of those proposals that would ensure that those important officials have a reporting, accountability and appointment line that is not simply down to the Secretary of State of the day. The hon. Gentleman raises an important issue, but there is a way round that.
I am disappointed in the Ministers response, but I shall mull this issue over to consider whether we should bring back another amendment at a later date. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 192 ordered to stand part of the Bill.

Clause 193 ordered to stand part of the Bill.

Schedule 14

Powers in relation to schools causing concern: wales

Jim Knight: I beg to move amendment 426, in schedule 14, page 218, line 18, leave out paragraph 4.

This amendment reverses a restriction the Bill would have imposed in relation to some Welsh voluntary aided schools that were causing concern. The restriction would have prevented the diocesan or other appropriate authority from appointing additional governors if the local education authority and Welsh Ministers had both already done so.
The amendment simply reverses a restriction that the Bill would have imposed in relation to some Welsh voluntary aided schools that were causing concern. The restriction would have prevented the diocesan or other appropriate authority from appointing additional governors if the LEA and Welsh Ministers had both already done so. I hope that it is straightforward enough for the Committee to support.

Amendment 426 agreed to.

Schedule 14, as amended, agreed to.

Clause 194

Complaints to which this chapter applies

Nick Gibb: I beg to move amendment 72, in clause 194, page 111, line 35, at end insert
(2A) The Secretary of State shall issue guidance as to which of the powers and duties of a head teacher shall be regarded as prescribed functions for the purposes of subsection (2)..

Christopher Chope: With this it will be convenient to discuss the following: amendment 73, in clause 194, page 111, line 37, at end insert
(aa) a decision relating to the disciplining of a pupil or any other matter relating to pupil behaviour or the enforcement of the published rules of the school;.
Amendment 74, in clause 194, page 111, line 37, at end insert
(aa) a decision about whether to suspend or exclude permanently a pupil;.

Nick Gibb: The clause is important. It gives parents and pupils the right to complain against a school when they believe they have suffered an injustice because of the actions or omissions, as it says in the explanatory notes, of the governing body or the head teacher exercising, or failing to exercise, certain specified functions. Amendment 72 would require the Secretary of Sate to issue guidance setting out precisely which powers, duties or functions of the head teacher would be regarded as prescribed functionsthose that the parent or pupil could complain about to the local government ombudsman.
The decision to create a new system for school complaints has not been greeted universally with acclaim. The Association of School and College Leaders said in its briefing to members of the Committee:
The complaints service proposed has the potential to be expensive, bureaucratic and, as it will have an interest in justifying its own existence, may be liable to increase rather than diminish whatever problems there may be.
It went on to say:
We are also extremely concerned that the effect of formalising the complaints system, in the way set out, has the potential to make schools more defensive thus fundamentally altering the home/school relationship. Even for concerns that initially appear minor, in order to protect themselves, schools will start recording all conversations and parental concerns and logging them with senior staff...Any increase in administrative time spent by teachers...will result in a reduction in available teaching time.
In a similar vein, the NUT has also expressed its concern to the Committee, saying:
There is concern among teachers and head teachers that this provision is at best unnecessary and at worst may further complicate existing complaints structures.
NASUWT expressed scepticism and pointed out a number of potential problems with the system. It is not convinced that a complaints procedure of this nature is necessary. It would be helpful if the Minister could respond to the concerns of all those trade unions that have expressed their view. Will the new procedure result in schools becoming more defensive and cautious, perhaps by setting up a rather bureaucratic system to log complaints and concerns?

David Laws: The hon. Gentleman is putting very forcefully the comments made by the NUT and the ASCL. Does he believe that this local complaints commissioner is unnecessary, and would he have a preference for another solution?

Nick Gibb: I am not unconvinced that it might work. It might be a good system to enable parents to have more say over a school. I have cases in my own constituency where parents have complained to the head teacher at a school and have taken their complaint to a school governor and have received no satisfaction. Then they have come to me and I have written to the director of education or of childrens services and nothing has happened. I have then referred the complaint to Ofsted and, again, nothing has happened.

David Laws: On what areas has the hon. Gentleman received complaints? On what type of issues did he not get satisfaction?

Nick Gibb: I have a particular incident in mind. I will not name the school, but a parent had been concerned over a number of years about the amount of homework being given to her daughter. She was complaining that it was not enough and that the daughter did not receive any homework in some subjects, which did not comply with the homework documents that she had received from the school. She experienced that problem over a period of years and received no redress. I do not know whether this provision will ensure that such complaints are dealt with effectively, which is why I am asking such questions. I want to ensure that the system does not become defensive and bureaucratic. It must be able to deal with the genuine concerns of parents, if those concerns are not being met. Our education system must be much more responsive to parents desires about the quality of education that their children receive.
Does the Minister expect the change to result in an increase in the number of complaints, or does he believe that the overall total will remain the same? Amendment 72 requires the Secretary of State to specify which powers and functions of a head teacher would fall within the scope of a new complaint system.
The ASCL has asked for clarification on whether prescribed functions mean functions prescribed directly in legislation, or powers given to head teachers by virtue of other legislation. It says that if it were to be interpreted as the latter, it could have most unfortunate results. In its briefing, it cites an example:
schools have a power (but not a duty) to act on poor behaviour away from the school site. However, if school staff take up this power, for example by patrolling an area away from the school and disciplining pupils who misbehave a school could be seen as assuming a duty of care to prevent all misbehaviour and bullying in the patrolled area. The school could then potentially become liable in tort if something happened, that could be shown to be foreseeable, to one of its pupils in the area even though the school has no power to give orders to pupils unless they are either on the school site or under the lawful control of the school.
It would be very helpful if the Minister could address that very specific example.
Amendment 73 relates to complaints about the disciplining of pupils, pupil behaviour and the enforcement of published school rules, and proposes that such matters should be specifically excluded from the remit of the complaints procedure. As it stands, the Bill only takes out of the procedure issues about admissions decisions and matters about which the complainant already has a prescribed right of appeal, but there is a strong case for taking out behaviour issues.
Amendment 74 would exclude decisions about temporary and permanent exclusions from the remit of the complaints procedure. Both amendments are important. There is a growing sense that poor behaviour among pupils is a very serious problem in our schools that has significant implications for the wider success of the education system. Poor behaviour undermines the education of pupils and impacts on the quality of their school life. It is a major cause of stress for teachers and school staff. If pupils are poorly behaved, teachers are forced to spend more of their time on crowd control rather than teaching, and that causes some to leave the profession.
A survey in March 2008 by the Association of Teachers and Lecturers found that nearly a third of all teachers 29 per cent.had been punched, kicked or bitten by pupils. Nearly one in 10 teachers said that they had been injured by an aggressive or violent pupil, and two thirds of teachers had considered leaving the profession.

David Laws: I have a lot of sympathy with all of these amendments. None the less, amendment 74 would exclude from the process permanently excluded pupils. Is not that already one of the exempt areas in relation to complaints?

Nick Gibb: Page 106 of the explanatory notes says that permanent exclusions will be outside the remit of the local government ombudsman. It is important to include temporary exclusions, which is why the amendment is worded in such a way. Such matters of discipline and management should be left to the school. If teachers expect that they will have to justify themselves on such matters before an ombudsman, they are likely to resort to recording the process in ever greater detail, which may even serve as a deterrent to schools taking action that they would otherwise take. Therefore, in our opinion, the Bill should be amended to ensure that the ombudsmans powers are not extended to this area.
Actually, that is also the view of the ASCL, which is concerned about the system of independent appeals panels. It is the Conservative partys policy to abolish themthey have provided a huge disincentive to head teachers to expel or exclude pupils permanently because of fear of the stress and expense of having to go through the independent appeals process.
The ASCL says that it is imperative
that the local commissioner will not be able to substitute his...judgment for that of the school.
It also says that without that, and without a means of enforcing it, we may see a rising tide of complaints as parents seek another roll of the dice when trying to obtain what they want. That has been the experience of independent appeals panels for exclusions and omissions. In particular, there is a real danger that this well-meaning provision will significantly undermine schools capacity to maintain good order and discipline. We agree with the ASCL that anything to do with behaviour and discipline, whether or not there is already a prescribed right of appeal on it, should be taken out of the Bill, which is the purpose of amendments 73 and 74.

David Laws: On a point of order, Mr. Chope. I seek your guidance on when you want me to make my main speech on this aspect of the Bill, in the hope of a courteous response.

Christopher Chope: We will have a stand part debate on the clause, so if the hon. Gentleman wishes to speak to this group of amendments, he can do so, or he can wait for that debate.

David Laws: I know that you will stop me if I get this wrong, Mr. Chope. Our concerns underlying clauses 194 and 195 are similar and they would complement the discussion on amendments 72 to 74. With your permission, I will speak to the amendments now and not repeat myself when we discuss clause 195 or during any stand part debate on clause 194.
Our attitude to this part of the Bill is one of deep scepticism. The hon. Member for Bognor Regis and Littlehampton made the point very effectively that parents in our constituencies want to ensure that when they have complaints about a school, they have some mechanism for getting them heard. Of course, at the moment, there is a mechanism in any school to discuss issues with a head teacher. A discussion that probably began with the classroom teacher can be escalated to include the head teacher and the governing body. Frequently, in my experience, it will be escalated to the local authority. At that point, it can be escalated finally to the Secretary of State.
I understand why the Minister and his colleagues want to remove the right of appeal to the Secretary of State, because it seems somewhat excessive. I am not sure whether we obtained from the Minister in the evidence session an idea of how many of the complaints that the Secretary of State receives are investigated rather than simply dismissed as things for which he does not have responsibility. It would also be interesting and useful to know how many of those complaints have been upheld. Will the Ministernow or in the futuretell the Committee how many complaints have been received in the past three years, how many of those were investigated, and how many were upheld?
My impression is that the types of complaint that are likely to work their way up to the Secretary of State will often be vexatious, although I will not address that issue now as we have amendments that specifically deal with that. My impression is that many of the complaints tend to be issues that will not be pursued and that probably reflect a frustration with the decisions that were originally made. I am horrified, as are the ASCL and the NUT, by the thought that in many of the areas described so eloquently by the hon. Member for Bognor Regis and Littlehampton, there could be the process of appeal not only to a head teacher, but to a governing body, potentially to a local authority and then to this ombudsman function.
The Committee will knowin some senses this is a commendable thingjust how rigorous and detailed the ombudsmen process is, and how expensive it is. There is even a section in

Christopher Chope: Order. These are quite specific amendments. The hon. Gentleman has already referred to the fact that he has tabled a separate group of amendments. We will also have a clause stand part debate. It would be much more helpful if he directed his remarks specifically to the amendments before us.

David Laws: I am quite happy to do so, Mr. Chope.
It is my wider scepticism about whether the Bill strikes the right balance between the rights of parents and having a practical complaints system that makes me strongly supportive of amendments 72 to 74. Amendment 72 essentially seeks to clarify and pin down the details in relation to prescribed functions that apply to the powers and duties of a head teacher. Amendments 73 and 74 address our concerns and those of the ASCL and the NUT about the types of issues that are likely to be referred to the ombudsman service. Amendment 73 would exclude issues relating to the disciplining of a pupil or breaches of school rules, while amendment 74, as we heard, would ensure that issues relating to permanent exclusion or temporary exclusion are also left aside from the job of the local commissioner.
We think that that is extremely sensible. After a parent has exhausted the head teacher, the school and the governing body process, and arguably has even gone via a local authority on the way, expecting a local ombudsman to deal with the issues of detail that relate to the disciplining of a pupil and decisions to suspend and permanently exclude would place an onerous administrative burden on schools. It could lead to a very expensive, prolonged and protracted process. It could significantly increase the number of complaints beyond the number received through the existing process. My suspicion is that the appeal to the Secretary of State is enough to deter many people, even if they are aware of it, from going through this process. If we had a local commissioner or ombudsman process, I have little doubt that the number of complaints that would be referred of the type that amendments 72 and 73 deal with would escalate quite rapidly.
The evidence given to us by the ASCL and the NUT showed clearly that their concern was not about just having the judgments on discipline of the teaching force of the school and the governing body overturned and questioned in a way that could be very damaging and undermining. They are also worried that to meet the evidential criteria that an ombudsman service is inclined to use, as opposed to the governing body or a head teacher, there would be a real risk that the amount of information that would have to be kept by a school could increase enormously compared with what is kept today. It is not just that that information might have to relate to the incident that may have led to the decision to discipline, permanently exclude, suspend or temporarily exclude, but that a series of incidents, perhaps over a prolonged period, often are taken into account in a judgment made by a head teacher and a governing body. If we have these more onerous criteria and the new mechanism, which is likely to be used more and to be more demanding of evidence than the existing systems, schools will inevitably feel obliged to keep much more information at an early stage about problems with individual pupils so that when decisions are looked at by a local ombudsman, they can be upheld.
The hon. Member for Bognor Regis and Littlehampton has referred to a decision on discipline in schools, and recently a similar decision in my constituency was challenged. The school has already been asked to account for the series of decisions, in discussions with parents over some time, that had led to the ultimate decision. I appreciate that the Minister has already indicated in the explanatory notes that a permanent exclusion will not be challengeable through the complaints mechanism because there are already appropriate appeal rights, but it would be useful to have that in the Bill. It would also, however, be useful to exclude from these provisions wider disciplining powers and the powers to suspend, because otherwise I fear that we will, at this very late time of the nightor very early morningbe casually imposing on schools an enormous bureaucratic burden that they and we might regret for many years.

Jim Knight: The clause describes who can ask the local commissioner to investigate their complaint and the types of complaints that he may consider. The functions of a head teacher that can be the subject of a complaint will be set out in regulations under clause 194(2), and we will consult with stakeholders on what they might include. That addresses one of the points made by the hon. Member for Bognor Regis and Littlehampton. He also asked whether schools would become more defensive and cautious. I do not believe so. We expect that, over time, complaints will go down to the local government ombudsmen, as those ombudsmen work with schools on their complaints process and we use our powers to issue guidance to schools on how complaints should be handled. At the moment, schools need to have a complaints process for parents, but there is not much guidance on what it should include and it is not very consistent. We can firm that up and make it more consistent, and have in place the teeth of an ombudsman process at the end of it.

Nick Gibb: I understand that the guidance for schools issued every year by the Ministers Department contains the same amount of text as the complete works of Shakespeare. How effective has that guidance been?

Jim Knight: This statutory guidance will be effective because schools will have to abide by it. There are different types of guidance, and they have differing effects, but I am confident that we can make improvements. The hon. Gentleman also asked whether the number of complaints would increase. Currently, around 2,200 cases a year come through to the Secretary of State. Others go through to local authorities, even though there is no statutory basis for that, and over time those numbers might decrease. One reason for piloting the new complaints service is to test some of those things and properly understand them.

David Laws: The Minister has helpfully given us the figure of 2,200 annual complaints to the Secretary of State under the elements covered by this clause. How many of those were investigated, and how many of the investigations upheld the complaint?

Jim Knight: Naturally, if the Department receives a complaint, the bar for the use of the Secretary of States powers will be set very high. He will have to judge whether any other governing body could reasonably have come to the same conclusionit is a test of reasonableness. The numbers currently being upheld are negligible because the bar is so high, which is why we think that we should set up something in between the school complaints process and the Secretary of State to give parents confidence that their complaint will be heard independently of the school.

David Laws: The Minister says that the number being upheld is negligible, but can he give us a figure? Is it less than one tenth?

Jim Knight: I cannot give the hon. Gentleman a precise figure, but I think that negligible is an extremely good adjective to describe it. If, at some point, I am able to provide him with a figure, I shall be happy to do so, but I suspect that it hovers around single figures.
Hon. Members clearly disagree with the inclusion of matters relating to behaviour and exclusions. Schools will continue to agree their own behaviour policies, to determine their school rules, and to fulfil their existing duties in relation to behaviour and discipline. They are the best bodies to do that, and nothing that we are doing will prevent them from continuing to do so.
Statutory guidance already states that head teachers must keep formal records on the length of temporary exclusions, so the Bill will not add further bureaucracy there. The local commissioner will, of course, look at a schools policy when reviewing a complaint, and will consider how well the policy has been followed, as well as whether the policy itself was sound. However, if it is reasonable and lawful, it would not be expected to change. We are not asking good schools to do anything that they are not doing already, but asking all schools to continue to strive to make improvements. That means learning lessons from previous formal complaints. We must accept that not all schools will get everything right, and when they get something wrong, an independent review process will ensure that parents and young people have access to effective redress. There is evidence that those very elements that the Opposition want to exclude from the new service are not working as well as they could and should.

Nick Gibb: Newspapers sometimes report cases of, for example, a head teacher who bans pupils from wearing earrings and an irate parent who goes to the newspaper about it and causes a big fuss. If the complaints procedure does not exclude the enforcement of behaviour policies and school rules, is there not likely to be a flood of such complaints? At the moment, they are usually dealt with effectively by the head teacher. Under the proposals, there might be a flood of complaints to the local government ombudsman from irate parents who want their children to wear earrings, have long hair or wear trainers instead of black shoes or whatever, which would be a big problem and discourage head teachers from properly controlling their schools and enforcing their rules.

Jim Knight: I do not believe that such an increase would result. The process will be smartened up, so that schools have in place a more consistent internal complaints procedure that parents can follow, whether in respect of earrings, short hair, long hair, black trainers, white trainers, or whatever trainers they are interested in. If parents then feel that the complaint has not been properly followed up, they could go to the local government ombudsman, who will make a judgment first about whether the complaints process was sound and then about whether it was followed. They will consider the merits of the case in order to make those judgments. The local government ombudsmen are extremely skilled in weeding out vexatious complaints very quickly.
I shall give some examples of when the system might not work as well as it should. Just over a year ago, the Childrens Commissioner submitted a report to the Secretary of State on the way that schools deal with complaints about bullying. The commissioner found that although the majority of schools are to be commended for their focus on anti-bullying policies, some families felt that their complaints had not been dealt with effectively. The commissioner also found that, in some cases, those who have taken unresolved bullying disputes through the system thought that it lacked transparency, accountability and effective redress. For example, a child with special educational needs might have disciplinary action taken against them for bullying, but their parents might think that those needs were not taken properly into account by the school when disciplining the child. That might give the parents cause to begin a complaints process. I see those sorts of cases in my surgery every now and then, and I am sure that other members of the Committee see them too. It is those sorts of cases that can be addressed.
Last years Ofsted TellUs3 survey found that 44 per cent. of children and young people who were asked thought that their school dealt with bullying not very well or badly. That may be a perception; we know that many schools tackle bullying and other behavioural matters properly. However, I am concerned about the cases that fall through the net and the effect of the amendment tabled by the hon. Member for Bognor Regis and Littlehampton would be that those young people and their parents would not be able to approach the local commissioner.

David Laws: Could the Minister clarify that legal concerns are not in any way behind this shift in policy and that it is not for a legal reason in relation to parental rights that the Government have put the measure in the Bill? That is not what he is indicating at the moment, but I just wanted to clarify matters.

Jim Knight: Certainly, when I made the judgment about whether we should introduce the measure my decision was not informed by any of the legal concerns that the hon. Gentleman referred to. As the hon. Member for Bognor Regis and Littlehampton either said or implied, it is really important that parents and pupils, as consumers of a service, feel that they have the right to complain, and complain independently, if that service is not being properly delivered.
I turn to exclusions. We are not proposing to transfer the hearing of complaints about permanent exclusions to the ombudsman, because there is already a well-tested system. However, we want to look at temporary exclusions. Complaints about the operation of the fixed-term exclusion process by governing bodies and management committees currently come to the Secretary of State. We are proposing that dealing with those complaints is brought into the remit of the new body. That is in line with our approach that unless there are effective processes in place to deal with complaints, the power to deal with them should transfer to the new body.
Again, I stress that the system does not undermine good schools, which are doing what they should be doing. For exclusions, we have not put in place any new rights of appeal that do not exist already. Furthermore, the measure does not prevent head teachers from suspending unruly pupils, which is particularly important for the well-being and safety of other pupils. We will continue to back the authority of head teachers when a pupils behaviour warrants exclusion, permanently or otherwise.

David Laws: Could the Minister explain why it is more sensible for the local authority to exercise oversight of appeals in relation to permanent exclusions, rather than the new body doing so? Why has he decided that the local authority is the right route for the permanent exclusion appeal rather than giving that power to the new organisation?

Jim Knight: We consulted on the proposal and the local authority option was one of the options that we consulted on. However, people came down very strongly in favour of the local government ombudsman as a properly independent body for a complaints service. I think that is the right judgment.
I hope that on the basis of those arguments the hon. Member for Bognor Regis and Littlehampton will withdraw the amendment.

David Laws: I appreciate that these are the amendments tabled by the hon. Member for Bognor Regis and Littlehampton, so I will not delay the Committee for too long, other than to say that the longer the Minister spoke the less convinced I became that the Bill, as it stands, is sensible. Indeed, I became more convinced of the excellence of the amendments and of the need to amend the Bill even further.
We have just heard from the Minister that of the 2,200 complaints that get through to the Secretary of State each year only a negligible number are upheld. That rather supports my view that there is probably not a great problem that needs to be addressed.
I think the Minister indicated that he expected the number of complaints received by the local commissioner to go down over time. I was not clear if he meant that there would be an initial surge of complaints of the type that I certainly anticipate. However, I am certainly not confident that he is right to predict that the number of complaints will go down. It is far more likely that the number of complaints will go up significantly, as people began to realise that they have this new power.
The Minister confirmed my fears about school bureaucracy, when he said that schools would start to need a more rigorous complaints procedure and would need to write everything down in more detail. That is precisely what I was worried about. Furthermore, he succeeded in horrifying me when he mentioned bullying and said that we will give a local commissioner the duty of mounting investigations into the way that schools deal with bullying policy.

Jim Knight: I did not say that. The hon. Gentleman is not listening.

David Laws: I will give way to the Minister if he wants to correct me, but he did refer to bullying and concerns about the way that bullying is dealt with in schools, in relation particularly to the local commissioner.

Jim Knight: What I said, more than once, was that the job of the ombudsman will be to look at the process of complaints, to establish if that process has been followed.

David Laws: And the Minister mentioned bullying in relation to that. If the measure is really needed only to check if due process has been followed, why on earth do we need a local commissioner? Why do we need that individual to have the power to recompense individuals who have to be involved in the investigations in relation to this part of the Bill? Surely, if it is only about examining process, not only could the governing body do that but, at worst, the local authority could take five minutes to figure out whether due process has been followed. Instead, I fear that this part of the Bill could be used precisely for some of the challenges to the policy of the school that are anticipated in amendments 72 to 74. That is why I would support the amendments strongly, if the hon. Member for Bognor Regis and Littlehampton decided to push them to a Division.

Nick Gibb: I was reassured by the Ministers response to amendment 72, when he said that he would consult on which functions of the head teacher or governor could be complained about. I think that will reassure some of the trade unions and the Association of School and College Leaders.
Like the hon. Member for Yeovil, I was less convinced by the Ministers response to amendments 73 and 74. The Ministers answer to the question about whether the measure would make schools more defensive was that he doubted that it would, because he will be issuing guidance. It is to be very special guidance that teachers will be forced to read and abide by, and they would introduce wonderful new complaints procedures in the school. The Minister said that will satisfy all parents who may have problems with the complaints about the behaviour of their children and the punishments applied to them.
I do not really buy that argument. Based on my constituency experience, I think that unless we take out issues such as behaviour and obeying school rules, there will be a surge of complaints. I am sure that if the Minister thought carefully, he might concede that point, based on his own experience as a constituency MP.
Such a surge of complaints would be a pity, because it would overwhelm the system and undermine the genuine attempt in the clause to provide a route for parents genuine complaints. For example, I have a constituent who has a problem with her daughters school, which is not providing enough homework. She seems to have failed to get redress, and I too have failed to get redress despite writing on her behalf to Ofsted and the Secretary of State.
I am minded to press the amendment to a Division, just to test the views of the Committee, because it is important to take out of the right of appeal any decision relating to the disciplining of a pupil, or any matter relating to pupil behaviour or the enforcement of the published rules of the school. It is very important that head teachers have the power to impose school rules, and they should be supported by the local authority, Ministers and the public when they try to enforce their school rules, because unless we get behaviour right in our schools, standards in education will not rise.
To support head teachers in their determination to instil discipline in schools, I want to test the views of the Committee about amendment 73, when we come to it. I would like to press amendment 73 to a vote, but in the meantime, I beg to ask leave to withdraw amendment 72.

Amendment, by leave, withdrawn.

Amendment proposed: 73, in clause 194, page 111, line 37, at end insert
(aa) a decision relating to the disciplining of a pupil or any other matter relating to pupil behaviour or the enforcement of the published rules of the school;.(Mr. Gibb.)

Question put, That the amendment be made.

The Committee divided: Ayes 3, Noes 8.

Question accordingly negatived.

David Laws: I beg to move amendment 425, in clause 194, page 112, line 7, at end insert
(5A) A person making a complaint under subsection (1) or, where the complainant is a parent, a pupil who the complaint relates to, has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the respondent on the grounds of the complaint..

Christopher Chope: With this it will be convenient to discuss amendment 149, in clause 194, page 112, line 13, after school,, insert an Academy.
The previous debate extended more widely than anticipated so I give notice that although we will discuss the specific amendment, we will not have a separate stand part debate.

David Laws: I am very happy with that, Mr. Chope. As you rightly said, the previous debate extended quite widely and I anticipate that we may have to touch on similar issues when we discuss amendments 2 and 71 to clause 195.
The Minister will have realised by now that I am not a fan of this part of the Bill. I would prefer it to be deleted altogether and that the powers of oversight on complaints were given to local authorities rather than the Secretary of State. However, if we are to end up with this part of the Bill, there at least needs to be consistency in the way that complaints are dealt with across different schools. One weakness that my hon. Friend the Member for Mid-Dorset and North Poole asked me to mention relates to the existing complaints mechanism. There can be difficulty pursuing complaints in relation to foundation schools, where I believe that the appeals mechanism does not even go beyond the governing body.
In a similar spirit, I am concerned that academies seem to be left out of the list of schools covered by clause 194. I cannot understand what mechanism there will be for pursuing complaints in academies beyond the governing body of academies. I would like clarification from the Government on whether there will be a consistent mechanism for complaints relating to academies. Amendment 425 deals with protection for those who complain, to make sure that any complaints that they make are not held against them.

Jim Knight: On Amendment 425, I would not expect any school to subject a parent or pupil to negative treatment simply because they had approached the new service. However, I realise that some parents might be concerned that their child would receive negative treatment as a consequence of their taking a complaint to the commissioner. I want to allay those fears.
In the statutory guidance on handling complaintsin which some people do not have confidencewe will make it clear that parents or pupils who complain must not suffer any kind of negative discrimination. I stress that it is the route for complaints that will change, not the right to complain. Parents and young people already have that right and there is no evidence that anybody complaining at present suffers adverse treatment. Finally, where a complaint qualifies for consideration, a commissioner will oversee the process, making sure that it is dealt with impartially, objectively and professionally, to ensure that parents and pupils have no fear of adverse treatment simply because they have made a complaint.
Amendment 425 would bring complaints from parents or pupils in academies into the remit of the local government ombudsman. Clause 207 allows the Secretary of State to make an order amending the definition of a qualifying school, which will enable us to bring academies into the service in future, if we choose to do so. However, we have good reasons not to include them in the early stages of the pilot; there will be a gradual roll-out of the new service across England.
There are schools facing particular issues. Many schools face challenging circumstances, but academies are often the solution for those with the most entrenched problems and the most disadvantaged areas. Such projects dismantle existing structures and processes, and start from scratch to rebuild the school from the bottom; to deliver, from the moment of opening, a transformed educational experience for pupils. I cannot overestimate the challenge that represents for the academy leadership. It will not be helpful to add to that challenge by asking academies to help us iron out the processes and structures in the service during initial stages of the roll-out, when we intend to evaluate the processes in a small number of local authorities.
It should also be borne in mind that the very nature of a phased approach, where we test the mechanics of the service before the full roll-out, means that the current complaints process for schools under sections 496 and 497 of the Education Act 1996 will still apply in many local authority areas, and therefore for many complaints. Academies will need to have their own complaints process for parents, and the pupil entitlements covered by funding agreements will allow the Secretary of State to ensure that pupils in academies are not disadvantaged by the different arrangements that will apply to them during the pilot.

David Laws: I have two questions for the Minister. First, in the interim period, what is the appeal mechanism for complaints that are not satisfied by the governing body? Secondly, is it his clear intention, if the trial period is continued, to have academies treated in the same way as all other state-funded schools regarding the roll-out of such a flawed complaints procedure?

Jim Knight: Academies have a robust complaints procedure in place, regulated by legislation on independent schools standards. That means that if parents or a young person were not satisfied with the response to their complaintmade in writingprovision would be made for the complaint to be heard by a panel, which would include one person who would be independent of the management and running of the school. So we have that in place at the moment, and I have not yet made the judgment on whether I definitely want academies to enter the complaints service. We want to get the pilot up and running and see how well it is working before we make a decision for academies. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

David Laws: I am grateful to the Minister for that run-through on the two amendments. The more I listened to his response on amendment 425, the more convinced I was that the Government have carefully taken the matter into account, and that there is no need for the amendment; the reassurances that have been given would satisfy any reasonable person. However, on amendment 149, the same is not the case. Some schools across the country will be slightly irritated to hear, for example, that academies will be exempted from the trial period because they are serving particularly deprived and disadvantaged neighbourhoods.

Jim Knight: I am reluctant to intervene, because it only prolongs the pain. It is not because the academies are in disadvantaged areas, but because they are dealing with a very difficult and challenging set of circumstances in turning around the school. It is the beginnings of a service, and while we are getting it up and running, I do not want to distract them from the difficult job that they are doing.

David Laws: That is a useful clarification, but perhaps the Minister can tell me how many of the schools still in national challenge are academies and how many are not, and whether he intends to exempt the schools in national challenge that are not academies. He is sitting backI am not sure whether he is thinking or sighing, but what he is certainly not doing is offering to intervene to explain the glaring inconsistency between the treatment of the majority of schools in national challenge that are precisely in those difficult circumstances and academies that are in exactly the same challenging circumstances, but will be exempted from it.

Jim Knight: There are different sorts of schools in national challenge, some of which are making good progress, and they will cross the threshold without any problem. But there are some that need a significant structural intervention, and it is likely that they will be academies, which means that they are likely to be exemptedcertainly for nowfrom the process.

David Laws: I simply do not believe that that is true. There are a huge number of schools in national challenge; some of them are improving rapidlysome of them are academies, and others are not. Many of those that are not academies may need serious intervention from their local authority. Indeed, I thought that that was what the previous clauses we have been discussing were all about. I am not convinced at all by the reasons for leaving academies out of this. If the Minister was saying that he was going to leave out all schools in similar circumstances, the Government would have a more coherent position. I understand why he might not want schools with those challenging problems to be going through this pilot, but my complaint is about the lack of consistency between different schools in the same challenges.
I was also somewhat surprised that the Minister maintained that, even if the pilots were successful and the process was rolled-out across all maintained schools, he might still be open to the possibility of not including academies. That simply underlines what we have had to come back to time and again throughout consideration of the Bill: the totally inconsistent way in which the Government treat academies compared with other schools. More importantly, there is a lack of any serious intellectual case for treating academies in such a way. I have a feeling that I will not on this occasion manage to persuade the Minister to amend this part of the Bill, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 194 ordered to stand part of the Bill.

Christopher Chope: I suspend the sitting until 1.10 am. I understand that, during that period, there will be some discussion about possible progress. However, I particularly ask the usual channels to have regard to the fact that there are people in this building who were led to believe that matters would have been concluded for today by now. It is important to bring some certainty to bear on matters and, from the Chair, I implore that something definite is made apparent by the time we reassemble at 1.10 am.

Sitting suspended.

On resuming

Christopher Chope: I made a plea before the sitting was suspended for half an hour for some certainty regarding the proceedings. Around three hours ago, I received a communication from the Government Whip stating that she would regard getting to clause 215 as reasonable progress. On that basis I informed, through the Clerk, the Refreshment Department and other workers in the House. It now seems that, despite the relatively steady progress made since then, the Government wish, or may wish, to go beyond clause 215.
I offered to chair this afternoons sitting because my co-Chairman chaired a long sitting on Tuesday and was likely to have a reasonably long one today. Nobody notified my co-Chairman that proceedings were likely to carry on as late as this, but if she was still here, as was the original intention, she would have been in the Chair throughout, which would have been equivalent to around two and a half times more than a normal sitting for one day. I appeal to the usual channels to bring some clarity and reasonableness to bear on the situation. The Bill can be considered on Tuesday and I was earlier informed that the Programming Sub-Committee might meetI do not know the full detailsto enable that sitting to go on until midnight.
I appeal to all members of the Committee to think about what is happening to other people in this building. The Refreshment Department was given no notice of what was happening, and there are also police officers, Badge Messengers, Clerks and shorthand writers to consider. We should do what is reasonable. I cannot dictate things from the Chair; all I can do is appeal to the better nature of members of the Committee, and I am doing that publicly because it would be unreasonable for us to sit beyond the time necessary to complete clause 214. If we get to that stage and the Government or anybody else insist on proceeding further, I will consider what action I can take.
I make a plea for reasonableness on the issue. There have been a number of incidents today, most of them when I have not been in the Chairthere was a period, for instance, when there was not even a quorum. We need to get down to business, but I hope that when we start debating the extra amendments on the amendment paper, we also have discussions behind the scenes and through the usual channels to bring some much-needed clarity to bear before it is too late. It is now quarter past 1 and people are entitled to know whether the Government plan for the sitting to continue until breakfast time or whenever.
As Chairman, I do not have the privilege of being able to go for a kip or whatever, so I am certainly not going to sit in the Chair without a significant break if the plan is to continue until breakfast. If the Government want to go on until then, we will consider that, but we need to be able to plan accordingly. I have said enough, so we will now move on to consider further amendments.

Jim Knight: On a point of order, Mr. Chope. I hear your plea and am certainly mindful of the strains that sitting so late puts on you and the staff to whom you have referred, and to whom we are extremely grateful for the service they are providing to us. We have sat for six hours extra this evening, but have made progress only from clause 184 to clause 195. Six hours is longer than we would have been sitting next Tuesday, so that is not reasonable progress, and we feel that it is important now to make reasonable progress.

David Laws: Further to that point of order, Mr. Chope. I would like to clarify whether your comments, with which I very much agree, are directed at the usual channels. I think that you have made it clear that you are in no way suggesting that the scrutiny of the Bill should be compromised, and you will understand that we are keen to ensure that we scrutinise it rigorously, because it is extremely important and could place onerous responsibilities on all the institutions involved. I support what you have said, but note that it is directed at the usual channels, not at the scrutiny being undertaken by those on the Liberal Democrat Benches.

Christopher Chope: I will make one further comment on the points of order. If it was thought reasonable at 10.30 pm that the Committee should adjourn when we reach clause 215, it does not now seem reasonable that we should adjourn after getting beyond clause 215, bearing in mind the time that has elapsed since then. I will say no more on that, other than that I hope that constructive discussions will take place while we consider further amendments.

Clause 195

Power of Local Commissioner to investigate complaint

David Laws: I beg to move amendment 2, in clause 195, page 112, line 46, at end insert
or if the local Commissioner considers the complaints to be vexatious or malicious.

Christopher Chope: With this it will be convenient to discuss amendment 71, in clause 195, page 112, line 46, at end insert
(5A) A Local Commissioner may in particular decide not to investigate a complaint under this Chapter, or to discontinue an investigation if, in his opinion, the complaint is vexatious..

David Laws: By extraordinary coincidence, Mr. Chope, following the comments you have just made, we come to an amendment dealing with vexatious and malicious activity.
Often when someone gets a bee in their bonnet over some perceived injustice, perhaps having had some setback they find difficult to accept or tolerate, they pursue a complaints procedure, or some other procedure open to them, maliciously or vexatiously. That can have enormously damaging consequences: it can use vast amounts of other peoples time and be an expensive and unproductive process. That is why we have proposed amendment 2.
We have already indicated, as was clear in the debate on clause 194, that we do not believe that clauses 194 and 195, or the associated clauses, are necessary or that those powers should sit with a local commissioner. We believe that local authorities should be the relevant higher appeal beyond the school governing body. However, if we are to have those measures in the Bill, we ought at least to try to filter out some of the complaints that would not be productive, could be damaging, and could be vexatious and malicious.
The amendment has been suggested by the Association of School and College Leaders, which is extremely concerned about these provisions and believes that there is scope for endless second-guessing of head teachers and endless complaints that could be extremely time consuming and unproductive. We believe that ensuring that the local commissioner can disallow, set aside or not pursue complaints that are considered vexatious or malicious would help to ease some concerns about the Bill.
The amendment is in some ways moderate. It would not necessarily change the Governments intentions, but it would clarify the how malicious complaints would be dealt with. Indeed, the wording is taken from the explanatory notes to the Bill. We hope that Ministers are willing to accept that malicious and vexatious activity can be extremely damaging, especially under the circumstances described in the Bill. We therefore hope that they will accept amendment 2or, indeed, amendment 71, tabled by the hon. Member for Bognor Regis and Littlehampton, which deals with the same concern in a similar way.

Nick Gibb: Amendment 71 would give the local commissioner a specific power to decide not to investigate a complaint if he believed it to be vexatious. The amendment would provide clarity and reassurance for teachers, who are clearly concerned that vexatious complaints may arise, causing them distress and other problems. That has not been adequately addressed in the Bill, as the hon. Gentleman said when moving amendment 2.
I cite what John Bangs, assistant secretary of the National Union of Teachers, said in evidence to the Committee. It is always good to quote the NUT when making my argument; I have done so several times today and may do so several times more this morning. Mr. Bangs said:
What I am anxious about is the increased potential for irrelevant vexatious and malicious complaints with this system.
Similarly, Chris Keats, general secretary of the National Association of Schoolmasters Union of Women Teachers, told the Committee:
We have reservations about the practicality and manageability of vexatious complaints.[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 5 March 2009; c. 92, Q228 and 229.]
An Association of School and College Leaders briefing says that the association is concerned about the same point. It notes that vexatious complaints by parents or pupils are referred to in the explanatory notes and that the local commissioner can investigate or discontinue such complaints as he feels appropriate. It wants provision in the Bill to discontinue complaints that are considered vexatious by the local commissioner. Although vexatious parents represent only a small proportion, they occur at every school and their impact can be disproportionate. The experience of ASCL members suggests that such parents would not be satisfied to be told by the local commissioner, however independent, that the school had acted reasonably.
That is the concern of all the unions that gave evidence to the Committee. They said that there is the potential to undermine the effectiveness of the new complaints procedure and that if the Bill fails to deal with this matter, it is also likely to undermine any good will that schools may feel towards the new arrangements. It is surely sensible to put the matter beyond doubt and to accept amendment 71, or the amendment moved by the hon. Member for Yeovil. That would give the local government ombudsman a specific power to discontinue vexatious complaints.

Jim Knight: The amendments would make it explicit that the local commissioner could decide not to investigate or to terminate an investigation on the ground that a complaint was vexatious or malicious. We would agree with the need for the local commissioner to do so, which is why, under clause 195(4), in direct replication of the power he has in respect of other complaints, the local commissioner has wide discretion to determine whether to initiate, continue or discontinue an investigation. Included within that provision is the ability to determine whether the complaint is vexatious or malicious, or does not warrant investigation by the service.
It is important to bear in mind the fact that the commissioner has a wealth of experience in dealing with such matters, and that when appropriate he exercises his discretion to terminate an investigation dealing with unreasonably persistent complaints. It is important to note that the percentage of complaints that would fall into this category is small. I expect the commissioner to adopt similar policies to those that he uses in his work with local authorities and to produce guidance on how to determine whether a complaint is vexatious in relation to complaints about school matters.
I also anticipate that the service will work closely with the widest possible range of stakeholders, including schools and governing bodies, to assist in handling such complaints. That should help to nip those difficult cases in the bud and ensure that we do not encourage such complaints by establishing the service. I therefore ask that the amendment be withdrawn on the basis that the issue has been given full and careful consideration.

Nick Gibb: I listened very carefully to what the Minister said and I am not convinced that the fact that the ombudsman, with his general powers, can stop a vexatious complaint being investigated will be enough to satisfy teachers. They will take advice from unions and look to the Education Acts, or similar legislation emanating from the Government, for information on how complaints are dealt with.
To reassure teachers, this power needs to be explicit in the clauses that create the new complaints procedure. It is not good enough to have those procedures spread around the legislation on measures that give the local government ombudsman his powers. We want to clarify the system; it needs to be explicitly drafted, as the hon. Member for Yeovil and I have said.

Bill Wiggin: I am very unhappy with the clause as well. This power should be clear and explicit in the Bill in the way described in the amendment, because our experience as Members of Parliament is that, often, people who become vexatious litigants and are persistent and unpleasant in the way that they complain are quick to check their legal position before they begin. Therefore, it would be helpful to teachers to know that we have taken every step with the Bill to ensure that anybody who wished to be vexatious was aware that the course that they were about to embark upon could be stopped dead in its tracks through clear legislation. Is that not the case with the amendment?

Nick Gibb: I am grateful to my hon. Friend for that intervention. He is absolutely right, which is why I will support either the amendment tabled by the hon. Member for Yeovil or that which stands in my name and the names of my hon. Friends.

David Laws: I fear that we have heard wise words from Conservative Members on the Back and Front Benches. From our experience in Parliament and our constituencies, we know that vexatious or malicious individuals can use all sorts of devices to take forward their complaints and can be particularly malicious and difficult regardless of the consequences. The provisions that the Minister referred to are extremely ambiguous. He referred to clause 195(4), which merely says:
Whether to initiate, continue or discontinue an investigation is a matter for the discretion of the Local Commissioner dealing with the complaint.
Frankly, it is obvious that the local commissioner would have that type of discretion if, for example, the complaint collapsed completely. However, the Bill does not make it clear that there should be specific provisionencouragement, in some waysfor the local commissioner not to allow malicious or vexatious complaints, which could be time consuming and damaging.

Dawn Butler: On a point of order, Mr. Chope. I move that the question now be put.

Christopher Chope: I am not prepared to accept that.

David Laws: I am grateful, Mr. Chope. As I was saying, I am not satisfied with the explanation given. It is essential that the safeguards be in the Bill, so I would like to press amendment 2 to the vote.

Question put, That the amendment be made.

The Committee divided: Ayes 3, Noes 8.

Question accordingly negatived.

Clause 195 ordered to stand part of the Bill.

Clause 196

Time-limit etc for making complaint

Question proposed, That the clause stand part of the Bill.

David Laws: I have one simple question for the Minister on this clause, which introduces a time limit for making a complaint. The time limit specified in subsection (1)(b) is 12 months, beginning with the day when the complainant first has notice of the matter complained of. How was that period decided on?

Jim Knight: The period is also qualified by subsection (2), which says:
A Local Commissioner may disapply either or both of the requirements in subsection (1) in relation to a particular complainant.
We feel that that flexibility is right. The 12-month rule is not hard and fast. One of the reasons for it is that the longer the delay, the harder it is to gather evidence. We believe that 12 months is a reasonable period to set as a guideline in the legislation, but as I said, it will be tempered by subsection (2). I urge the Committee to support the clause.

David Laws: I am grateful to the Minister for that explanation, although he did not say whether the measure is consistent with existing time limits relating to other complaints heard by the ombudsman service. Will he let us know whether it is, either now or in a letter to the Committee?

Jim Knight: The 12-month period is consistent, for example, with the Local Government Act 1974, so there is a degree of consistency. I hope that that satisfies the hon. Gentleman.

Question put and agreed to.

Clause 196 accordingly ordered to stand part of the Bill.

Clauses 197 to 202 ordered to stand part of the Bill.

Clause 203

Permitted disclosures of information by Local Commissioner

Jim Knight: I beg to move amendment 534, in clause 203, page 117, line 38, at end insert
( ) A Local Commissioner may disclose to the Parliamentary Commissioner for Administration any information obtained by the Local Commissioner under or for the purposes of this Chapter if the information appears to the Local Commissioner to relate to a matter in respect of which the Parliamentary Commissioner has functions.
( ) A Local Commissioner may disclose to the Information Commissioner any information obtained by the Local Commissioner under or for the purposes of this Chapter if the information appears to the Local Commissioner to relate to
(a) a matter in respect of which the Information Commissioner could exercise any power conferred by
(i) Part 5 of the Data Protection Act 1998 (c. 29) (enforcement);
(ii) section 48 of the Freedom of Information Act 2000 (c. 36) (practice recommendations); or
(iii) Part 4 of that Act (enforcement); or
(b) the commission of an offence under
(i) any provision of the Data Protection Act 1998 (c. 29) other than paragraph 12 of Schedule 9 (obstruction of execution of warrant); or
(ii) section 77 of the Freedom of Information Act 2000 (c. 36) (offence of altering etc. records with intent to prevent disclosure)..

This amendment permits the Local Commissioner to disclose information, obtained whilst conducting his investigation, to the Parliamentary Commissioner for Administration or the Information Commissioner in certain circumstances.

Christopher Chope: With this it will be convenient to discuss Government new clauses 25 and 26.

Jim Knight: Amendment 534 will permit the local commissioner to disclose to the Parliamentary Commissioner for Administrationor to the Information Commissioner, in certain circumstancesinformation obtained while conducting his investigation.
New clause 25 will provide absolute privilege for the purposes of defamation. It will ensure that statements, communications and certain other publications made by the local commissioner and other parties during an investigation into a complaint cannot be sued on as defamatory.
New clause 26 will place a duty on the local commissioner and the Parliamentary Commissioner for Administration to consult and disclose to one another when a complaint that they are investigating may relate to a matter that the other is also investigating.

Amendment 534 agreed to.

Clause 203, as amended, ordered to stand part of the Bill.

Clause 204

Annual reports

Jim Knight: I beg to move amendment 535, in clause 204, page 118, line 9, leave out
for Local Administration in England (the Commission).

This amendment removes the definition of the the Commission from clause 204. This term is now defined in new clause 27.

Christopher Chope: With this it will be convenient to discuss the following: Government amendment 537.
Government new clause 27Parental complaints: arrangements etc. to be made by Commission.

Jim Knight: Amendment 535 will remove from the clause the definition of Commission, which is no longer required, because it is now defined in new clause 27. Amendment 537 is another technical, drafting amendment that is required due to the insertion of new clause 27. The terms act, Local Commissioner and respondent are used throughout chapter 2, and the interpretation clauseclause 209defines what those terms mean in relation to the chapter.
New clause 27 makes it clear that references to the Commission in that clause will be to the Commission for Local Administration in England. That amendment to the interpretation clause simply provides that the same definition is applicable throughout the chapter. New clause 27 will ensure that the commission divides matters that may be investigated into appropriate categories and allocates responsibility for each category between the local commissioners.
The commission will also have to publish information about the procedures for making complaints under chapter 2 of part 10, and I emphasise that the new clause will simply replicate provisions in the Local Government Act 1974. The new clause is necessary and will simply serve to ensure that the commission can manage its cases effectively.

Nick Gibb: I want to ask the Minister more about new clause 27. It talks about dividing
the matters which may be investigated under this Chapter into such categories as it considers appropriate,
so it is not good enough simply to cite other legislation in which a similar division of categories of complaint occurs. This legislation includes a new set of complaints from parents of pupils at school, so it would be helpful if the Minister set out for the Committee the categories of complaint that will be divided. Will there be one for behaviour, where parents or pupils complain about behaviour, and another onI do not knowthe amount of homework or the quality of education? Will he explain what categories the new clause will introduce?

Jim Knight: The commissioner needs to make those decisions, which are practical matters. We are making the changes to give the ombudsman the powers to do as he does in respect of his local government responsibilities. It is right that we give him that freedom. We have not agreed with him how we might organise things, but it is appropriate to give him the powers to do so.

Nick Gibb: Will the Minister clarify whether all the local commissioners in the country will use their skills to deal with complaints from pupils and parents of children at school, or whether just some will specialise in complaints?

Jim Knight: As we have heard, the arrangements will be piloted and the initial roll-out will take place in pilot areas. Then, as the programme develops, the local government ombudsman service will make decisions about how to organise things locally and how much to do more centrally. I am sure that Parliament will keep in touch with that as the pilots develop.

Amendment 535 agreed to.

Clause 204, as amended, ordered to stand part of the Bill.

Clause 205

Secretary of States power of direction

Question proposed, That the clause stand part of the Bill.

David Laws: I want to ask the Secretary of State[Hon. Members: Oh!] I am sorry, Mr. Chope. I must not promote the Minister too rapidly. However, I noticed in one of our earlier breaks that the Secretary of State seems to have applied for a higher postthat of Chancellor of the Exchequer, no less, is his latest request in an interview. Perhaps I was not far off the mark in saying that the Minister may soon be elevated to an even loftier position.
Earlier, we debated annual reports, including the job that they would be expected to do, and the detail and accountability necessary in respect of the bodies that are expected to produce annual reports, yet the explanatory notes on the clause say almost nothing about what the contents of the annual report will be.
On reading the clause, which is considerably longer than the explanatory notes, we are no wiser about the expectation in respect of the reports contents. There is nothing about whether the annual report will have to include the cost of the local commissioner and, given the Ministers earlier answer, there is a degree of ambiguity about who those individuals are who will be doing that job and whether they will be carrying out ombudsman functions in relation to other services beyond the schools sector.
There is no indication of the types of problem that the local commissioners will have to deal with and whether any information will be required in the annual report to tabulate sensibly the types of issue that have been referred to the local commissioner, which might be useful for those people considering the job that the local commissioner is doing. There is also no indication of what the performance criteria will be or whether the local commissioner will be required, in his or her annual report, to state whether there are any lessons to be learned from the complaints received during a particular year, in relation to resolving them locally rather than having to go through what could be an expensive process.
The Bill and the explanatory notes are sketchy in that regard. I fear that we could be missing an opportunity to use the annual reports on this body, which we do not support, but which we are struggling to assist in doing a good job. This may be a missed opportunity to make this body a more effective in the role that the Government envisage for it.

Jim Knight: The local commissioner must prepare an annual report and submit it to the Commission for Local Administration in England. The report may, for example, contain information to do with delivering public value, the commissioners performance, and financial accounts and governance arrangements. In relation to complaints, we would expect the report to include, for example, the number of complaints, a summary of their outcome and information on the speed with which complaints had been resolved. The commissioner will submit the report to the commission, which will then lay it before Parliament. The publication of that report is an important element of monitoring transparency and public accountability.
Currently, the local government ombudsman also agrees a business plan with the Department for Communities and Local Government and then reports against that in its annual report. I hope that that information is sufficient to enable us to agree on the clause.

Question put and agreed to.

Clause 205accordingly ordered to stand part of the Bill.

Clauses 206 and 207 ordered to stand part of the Bill.

Clause 208

Amendments consequential on Chapter 2

Jim Knight: I beg to move amendment 536, in clause 208, page 120, line 7, at end insert
(2) In paragraph 1 of Schedule 4 to the Local Government Act 1974 (c. 7) (the Commission), after sub-paragraph (2B) (inserted by the Health Act 2009) insert
(2C) A Local Commissioner may not investigate a complaint against a school under Chapter 2 of Part 10 of the Apprenticeships, Skills, Children and Learning Act 2009 if the Local Commissioner
(a) is a governor of the school;
(b) is a parent of
(i) a registered pupil at the school, or
(ii) a person who has been a registered pupil at the school within the five years ending with the making of the complaint; or
(c) works at the school or has worked at the school within those five years.
(2D) In sub-paragraph (2C) registered pupil has the same meaning as in the Education Act 1996..

The amendment prohibits a local commissioner from investigating a complaint against a school where they are a governor, where they have a child who is or was a pupil within the last five years, or where they have worked within that period. There could otherwise be a conflict of interest, which would not be in the interest of anyone.
I commend the amendment to the Committee.

Amendment 536 agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

David Laws: It would be tempting to breeze past this clause, particularly at this early hour. However, I would like to ask the Minister for more information, as the clause is dealt with rather sketchily. The explanatory notes state:
The Local Commissioner will be able to consider complaints relating to the National Curriculum where it affects an individual pupil. Previously, local education authorities had a role in the complaints process under section 409 of the Education Act 1996 and paragraphs 6(3) and (4) of Schedule 1 of the Education Act 1996
no doubt we were all aware of that. Those sections have been repealed so that complainants are able to approach the local commissioner under the new scheme. Why has the Minister decided to shift from the existing mechanism of complaints to the new one, given that in respect of exclusions, he has said that he does not propose to make any changes to the existing appeal and complaints mechanism?
I would like to probe further what the explanatory notes to clause 208 mean when they state that the local commissioner will be able to consider complaints that relate to the national curriculum where it affects an individual pupil. What types of complaints are likely to be acceptable, and what complaints have been made in respect of this to the Secretary of State over the past few years? Does the Minister have any indication of the numbers of complaints that have been made?

Jim Knight: It is sensible to align the current complaints handling system as much as possible when introducing the commissioner. Under current arrangements, the local authority has a role in considering complaints about a schools curriculum, Christian collective worship, attendance at Sunday school and exemptions from non-curricular sex education. However, local authorities have no legal obligation to consider any other type of complaint.
That system does not always work well. There are up to three stages for parents to go through from the governing body to the local authority and the Secretary of State. That process can often be lengthy and frustrating for all concerned. In exempting local authorities from considering those types of complaints, the new arrangements will introduce a more streamlined and coherent system.

David Laws: I am not entirely convinced by that explanation. In our view, the right of appeal should be to the local authority, which would remove the Ministers concerns about an additional tier of bureaucracy involving the Secretary of State. The Minister was a little sketchy about concerns surrounding the national curriculum that relate to one pupil. He gave us no statistics about the number of complaints that have been received in that area over the last five years. That might be another issue on which he would like to write to the Committee.

Question put and agreed to.

Clause 208, as amended, accordingly ordered to stand part of the Bill.

Clause 209

Interpretation of Chapter 2

Amendment made: 537, in clause 209, page 120, line 10, at end insert
the Commission has the meaning given by section [Parental complaints: arrangements etc. to be made by Commission](1);.(Jim Knight.)

This amendment provides for the Commission in Chapter 2 of Part 10 to have the meaning given in new clause 27.

Clause 209, as amended, ordered to stand part of the Bill.

Clause 210

Interim statements

Nick Gibb: I beg to move amendment 79, in clause 210, page 120, line 28, at end insert
(2A) The Chief Inspector may only make an interim statement about a school in England that has provision for children with special educational needs if it has been assessed by an inspector who has training and expertise in special educational needs and has properly engaged with such pupils at that school..
This clause introduces the new light-touch health check in circumstances in which Ofsted has decided not to have a more frequent regular inspection of a school because it is judged by Ofsted to be good or outstanding. Ofsted published a consultation document in May 2008 that focused on improvements and proposals for maintained school inspections from September 2009. The document proposed changes to the way in which Ofsted conducted inspections of schools and how frequently it conducted them. It says that inspections
will be more tailored to the needs of the school. All schools judged to be satisfactory or inadequate in their most recent full inspection will be inspected within 3 years; in general, schools judged good or outstanding will be inspected within 6 years, although one health check report will be published in the intervening years.
The purpose of the clause, therefore, is to change the legislation to enable Ofsted to conduct a health check only, instead of the regular three-yearly inspection. The amendment would introduce an additional provision to ensure that the chief inspector of schools may make an interim statement about a school that has provision for pupils with special educational needs only if it has first been assessed by an inspector who is trained in assessing special educational needs. The amendment also stipulates that the inspector must have properly engaged with pupils at the school as part of the assessment.
The light-touch inspections system raises concerns that inspectors can do a lot of their inspecting via desktop data, that they will rarely see the school, and that they will often not sit in classrooms. Inspectors could, therefore, inspect a school without coming across any children with special educational needs, particularly if it was a small specialised unit and the inspectors were there for only a couple of days and spent much of that time analysing data. Care must be taken so that schools do not become subject to only the health check, rather than their three-yearly inspection, in circumstances in which the inspector has not specifically inspected the SEN provision. The inspector should be properly trained and experienced in that provision.
That is the view of the National Deaf Childrens Society, which said that it would welcome assurances from the Government that a school with provision for children with SEN will not be granted an interim statement or school health check unless provision has been assessed by an inspector with training and expertise in SEN. It wanted to see that the inspector had properly engaged with SEN pupils at that school.
I would like to hear the Ministers response to this important amendment that would ensure that we were inspecting the SEN provisions in schools and not simply doing a high-level inspection that could often overlook important details.

David Laws: I do not need to add much to the comments made by the hon. Gentleman in relation to the amendment[Hon. Members: Hurray!] If I am tempted by the usual channels, I might speak for slightly longer.
I would merely like to put on the record our strong support for the amendment. If a fair evaluation is to be made of such schools, it is important that the elements of protection and quality assurance contained in amendment 79 are present.

Jim Knight: For reasons that I shall explain, the amendment is not appropriate. It is right that the progress of pupils with special educational needs is an important consideration in the new school inspection arrangement, and I can assure hon. Members that it will be. In fact, a focus on the progress of different groups of pupilsespecially vulnerable pupilswill lie at the heart of the new arrangements. All inspectorswhether they are those from Her Majestys inspectorate or additional inspectors employed by Ofsteds contractorswill receive training in inspecting SEN under the new arrangements. There will be a specific judgment on the learning and progress of pupils with SEN in every school inspection report.
If a school is judged inadequate in that respect, there will be real consequences. A school will not be judged as good or outstanding overallin fact, it would be highly unlikely that a school would be judged good overallif progress for SEN pupils is anything less than good. That is important because only good and outstanding schools will be eligible for a health check report at the three-year point, and only when Ofsteds annual risk assessment shows that a school is maintaining or improving its level of performance will a health check report be issued, as opposed to an inspection being carried out.
The annual risk assessment will apply to all schools and will be used to determine the scheduling of inspections within the cycle. Performance data on the progress of SEN pupils will form part of that assessment and a decline in the performance of pupils with SEN could lead to a school being inspected earlier in the cycle. The fundamental point is that it is important to remember that the health check report is not an inspection report. Having an expert on SEN put together the health check report for a school would not make a material difference to the outcome because the report will be based on performance and other data, which all inspectors should be able to interpret. There is no need for additional expertise for an inspector to analyse data and produce a report.

Nick Gibb: I am not sure whether the Minister has understood the amendment correctly. It is not a matter of whether the health check is carried out by an inspector who is properly qualified in SEN. The issue is whether the chief inspector is making the decision only to have an interim health check based on an inspection that has been carried out by an inspector who is properly trained in dealing with SEN.

Jim Knight: I am sure that the hon. Gentleman is taking note of what I have said, which was that where inspectors are making a judgment, they have to be properly trained in SEN matters. SEN will be an important part of that. Where they are analysing data, it is clearly not such an issue.
I assure the hon. Gentleman that properly engaging with pupils at the school will be an even more important aspect of the inspection process than it currently is. In particular, Ofsted is developing a pupil questionnaire that it will use to seek views from all pupils at the start of an inspection. Clearly, it would not be appropriate for inspectors to engage directly with pupils at a school as part of putting together a health check reportthat engagement could happen only as part of an inspection visit. In the context of a health check, such a visit would defeat its object, which is to defer inspection in recognition of good performance. In light of those clarifications and assurances, I hope that the hon. Gentleman will withdraw his amendment.

Nick Gibb: I am afraid that those assurances do not tally with the wording of the amendment, which is:
The Chief Inspector may only make an interim statement about a school in England that has provision for children with special educational needs if it has been assessed by an inspector who has training and expertise in special educational needs and has properly engaged with such pupils at that school.
That is the point that concerns the National Deaf Childrens Society. It wants to be sure that when a mainstream school with a unit for children with special educational needs has been categorised as good or outstanding, the inspector makes that judgment based on an assessment that took into account the quality of the SEN provision. I take the Ministers point that in coming to that overall conclusion, the inspector will have assessed the unit, but I am not convinced that the inspectors carrying out the inspections will always be trained in dealing with the schools specific special educational needs. Deafness, for instance, is a low-incidence special educational need.
Given how inspections are carried out under the light-touch inspection regime, I suspect that inspectors will engage very little with pupils in schools. If the number of pupils with special educational needs at a school is small, it is even less likely that the inspector will engage with them. In light of that, unless the Minister wants to respond, I would like to test the Committees opinion of amendment 79.

Question put, That the amendment be made.

The Committee divided: Ayes 3, Noes 8.

Question accordingly negatived.

David Laws: I beg to move amendment 150, in clause 210, page 121, line 33, after school, insert
and to the local education authority..
Amendment 150 is another important amendment to clause 210. It is necessary to step back a moment and to record the significance of the clause, which will insert three new provisions into the Education Act 2005 relating to the powers of the chief inspector and associated duties to schools. Proposed new section 10A of the 2005 Act, as we have discussed, will enable the chief inspector to publish an interim statement, commonly known as a health check, when the chief inspector considers that a schools performance is such that it is appropriate to defer a routine inspection of the school for at least a year. In other words, it is an important statement of oversight in relation to individual schools performance. The statement must set out the chief inspectors opinion that inspection can be deferred and the reasons for that opinion.

Siôn Simon: I just want to give the hon. Gentleman the opportunity, for the record, to correct the impression that might be created by his simply reading out the Bill that he is in any way filibustering or deliberately wasting time.

Christopher Chope: Order. I am the judge of whether people are in order in this Committee. To suggest that the hon. Member for Yeovil is filibustering and not being called to book by the Chair is to criticise the Chair. I hope that the hon. Gentleman will not go down that route.

Siôn Simon: On a point of order, Mr. Chope. I was not criticising the Chair or suggesting that the hon. Member for Yeovil was out of order; I was simply suggesting that a cynic might interpret his merely reading out the Bill as a filibuster. I was suggesting not that he was out of order, but that what he was saying sounded like a filibuster.

Christopher Chope: I call Mr. Laws.

David Laws: The words when in a hole spring to mind.
It is important to set the debate in context. The point of the amendment is to deal with accountability to local authorities in relation to the performance management and commissioning function of schools. Indeed, the 2006 legislation gave local authorities a key strategic role in school performance management and commissioning schools. The amendment would ensure that the Governments stated intention was respected in relation to the key role that local authorities should have.
The explanatory notes to the Bill make it clear that the changes that it introduces ensure that when the chief inspector makes an interim statement about a community foundation or voluntary school, a community or foundation special school or a maintained nursery school, she has to send a copy of that interim statement to the
appropriate authority of the school,
which can be either the governing body or the local education authority. In respect of academies and other schools specified in the Bill, the chief inspector
must send a copy of the interim statement to the schools proprietor and others.
What both those elements of the Bill are sadly lacking is any assurance that this very important statement of how a school is performing and how it should be inspected will be available to the local authority. After all, under the Governments 2006 legislationand we must presume that this is still their approachthe local authority is supposed to be discharging a key responsibility in relation to performance management and commissioning. In the two circumstances that I mentioned, however, a local authority, with its supposed strategic oversight, would not even be copied in.
The amendment would therefore ensure that an interim statement from the chief inspector stating that a school does not need to be inspected for a year would be sent to the local authority as well as the school in question. That is crucial. If the Government are serious about local authorities performance oversight role, surely authorities must know whether a chief inspector is giving an exemption from inspection for a period. Surely authorities must be able to cross-check whether that is sensible.
The Bill sets out a number of circumstances in which there would be no duty to inform the local authority. They concern schools where the governing body is the relevant authority, and apply to academies and other specified schools, in respect of which the statement would go to proprietors and not local authorities. Such an approach has been taken despite the fact that local authorities are increasingly being seen and treated as commissioners for academies. As the Bill stands, authorities are not even being allowed to see the interim statements issued by the chief inspector. That is crucial for the oversight of such schools and for performance management.
Increasingly, the Government are funding and providing school improvement partners, which are working in and for local authorities to assess the progress and performance of schools. How can it possibly be right that those individuals are not made aware of such an important interim statement that indicates that a school does not need to be inspected for a specified period? If the information is not provided to local authorities, there will be a risk that, where there is a difference between the local authoritys view and the chief inspectors assessment, there will be no opportunity to air the matter. There will be occasions when the local authority, with all its knowledge and the complaints that it may have received from parents and others, has an insight into how a school is performing that the chief inspector does not have. This common-sense amendment is both necessary and consistent with Government policy and, at this early hour of the morning, the Minister could easily accept it. That would improve the Bill, satisfy me and ensure that Government policy would be delivered more effectively. I invite him to accept this important and excellent amendment.

Jim Knight: The hon. Gentleman is seeking to be generous, but I fear that we will not agree. There is a clear case for the local authority to be automatically sent a copy of the health check report on a school that it maintains, particularly in the light of the authoritys role as an employer and given its direct responsibilities for the schools improvement. The Bill allows for that.
There is equally a case for the local authority to be automatically sent a copy of the health check report when it provides funding for pupils to attend non-maintained special schools. Again, the Bill covers that. However, the case in respect of other non-maintained schoolsin particular, academies, city technology colleges and city colleges for the technology of artsis far from clear. The local authority is neither the employer nor the funding source for such schools and it is not correct to imply that the inclusion of those schools in the list of relevant partners for the childrens trusts somehow means that they have been brought under the control of the local authority and that the authority could therefore have an automatic right to receive the health check report. On the basis of those arguments, I invite the hon. Gentleman to withdraw his amendment.

David Laws: You will not be surprised to hear, Mr. Chope, that I am not particularly satisfied with that explanation. It is astonishing that a local authority, and particularly one that had commissioned with enthusiasm academies in its area, should not be informed of the conclusion of a judgment by the chief inspector. It also seems extraordinary that the schools that are listed in proposed new section 14A of the 2005 Act and paragraph 646 of the explanatory notes would not be included in that group of schools about which the local authority would be informed of the results of the interim statement.

Jim Knight: If it will help the hon. Gentleman, I can assure him that there are no barriers to a local authority gaining access to any of the reports. All the health check reports will be published on the Ofsted website and a local authority can, if it chooses, obtain a copy from the school. In addition, a local authority representative is on the governing body of every academy and all the other schools listed. There will therefore be no problem in local authorities accessing the reports if they want them. We just do not propose to send them to them.

David Laws: I am sorry, but the Minister cannot have it both ways. He cannot say that he wants to send the reports on presumably the majority of schools in the country to local authorities and create this sensible duty and, at the same time, say that there is an expectation that all the others can be looked up on a website, or a hope that a local authority representative will have attended a particular meeting of the governing body.
Paragraph 646 of the explanatory notes says:
Section 14A applies in cases where the Chief Inspector makes an interim statement about a community, foundation or voluntary school, a community or foundation special school, or a maintained nursery school.
It is worth highlighting for a Minister in another Department the fact that these words are in inverted commas, because the paragraph continues:
Subsections (1) to (3) of 14A require the Chief Inspector to send a copy of the interim statement to the appropriate authority of the school (either the governing body or the local education authority) and to other specified people.
If the Minister wants to satisfy us even moderately, will he tell us, under the circumstances listed in paragraph 646, for which of those schools the reports would be sent to the local education authority and for which schools they would not? Paragraph 646 is ambiguous about whether the governing body or the local education authority would be the relevant authority in each case.

Question put, That the amendment be made.

The Committee divided: Ayes 1, Noes 8.

Question accordingly negatived.

Clause 210 ordered to stand part of the Bill.

Clauses 211 and 212 ordered to stand part of the Bill.

Schedule 15

The School Support Staff Negotiating Body

Nick Gibb: I beg to move amendment 377, in schedule 15, page 221, line 10, at end insert
(5) The membership of the SSSNB shall include an equal number of persons representing
(a) the interests of prescribed school support staff organisations, and
(b) the interests of prescribed school support staff employer organisations..
We now come to schedule 15 and clause 212, which establishes the school support staff negotiating body. The amendment would insert into paragraph 2 of the schedule, which relates to the membership of the bodyparagraph 1 relates to its constitutiona fifth aspect of the membership by saying that it shall include an equal number of people representing the interests of prescribed school support staff organisations and the interests of prescribed school support staff employer organisations. It is designed to ensure that the SSSNB is not dominated by one side or the other in negotiations and that employers and employees are given an equal voice in the body. That is one concern of the Foundation and Aided Schools National Association and other employers, so I should be grateful if the Minister addressed the amendment and let us have his opinion.

Jim Knight: I wholeheartedly agree that there should always be equal representation of employers and employees on the school support staff negotiating body. It goes without saying that it would be unlikely for trade unions or organisations representing employers of support staff to agree to be party to any body that did not allow them fair representation and equal voting rights.
Schedule 15 already provides the necessary means to ensure that employer and employee organisations are treated equally by providing that the SSSNB will be constituted in accordance with arrangements made by the Secretary of State after consultation with the school support staff organisations and the school support staff employer organisations.
A constitution for the non-statutory body, which the Secretary of State will set up using his prerogative powers, is being drawn up in consultation with all the organisations that will make up the membership of the SSSNB. Arrangements made for the constitution of the non-statutory body will be treated as if they were arrangements made for the statutory body once it comes into effect. That draft constitution allows the organisations representing school support staff employers and employees to agree collectively the number of individuals who will represent each named organisation. However, it also stipulates that the total number of individual members representing support staff employer organisations must not exceed a total of 15; similarly, individual members representing support staff must not exceed 15.

Nick Gibb: The right hon. Gentleman has almost answered my question. If he is consulting on a constitution that provides for an equal number of people representing employers and employees, there is no reason why he cannot accept the amendment. It would not clash with the constitution, which has other things in additionmore detail on the numbers and so on. The amendment is not inconsistent or incompatible with the constitution.

Jim Knight: I do not believe that it is necessary to reiterate the point that the hon. Gentleman made in the schedule. Before making revisions to the constitution, the Secretary of State is required by the schedule to consult the member organisations that represent the interests of school support staff and employers. That will help to ensure the fairness and equity of membership that is being sought, and I ask the hon. Gentleman to withdraw the amendment on the basis of those assurances.

Nick Gibb: It is a little churlish of the Minister not to accept the amendment, but I am reassured, so I might be thought churlish if I pressed it to a Division. His assurance was delivered at great speed, so I shall read the Hansard report and consider the matter further with a view to returning to it on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sharon Hodgson: I beg to move amendment 547, in schedule 15, page 222, line 4, leave out represents and insert
is a trade union recognised to represent.
This is a small but perfectly formed and important amendment to paragraph 8 of the schedule, which includes some important definitions of the organisations that will be members of the negotiating body. School support staff are represented by recognised trade unions, such as GMB, UNISON and Unite, and that is incorporated into their employment contracts via the local government Green Book conditions. If the Green Book terms are replaced with the SSSNBs terms, the recognised status of support staff unions will be lost. What replaces it under the SSSNB structure is membership of the body, but that is not the same as being recognised. The purpose of the amendment is to maintain the continuity of trade union recognition for support staff, and I look forward to the Ministers response.

Jim Knight: My hon. Friend has set out clearly what the amendment is trying to achieve, and I am aware that some trade unions are worried that their status of recognition in collective bargaining will be lost. The SSSNB will be a statutory body and membership will be prescribed in regulations. UNISON, Unite and GMB will be the prescribed unions as currently titled, and employers and unions represented on the SSSNB will be required by statute to consider and negotiate on matters relating to the remuneration of support staff. The statutory provision supports the view that the employers who are represented on the SSSNB have recognised the unions for collective bargaining purposes by virtue of the fact that both unions and employer representatives are required under legislation to negotiate with a view to reaching agreement. Naming the relevant organisations within the prescribing regulations provides the unions with appropriate statutory recognition, so the amendment would add nothing of further significance in strengthening that level of recognition. I hope that my hon. Friend will withdraw the amendment.

David Laws: The hon. Lady has raised a very important point, and I would like the Minister to clarify whether there are any circumstances in which one of the organisations referred to in this part of the Bill might not be a trade union.

Jim Knight: Clearly, those representing the employeesthe staffwould be just those three unions, but representatives of the employers would also be on the body, and they would not be trade unions.

Sharon Hodgson: With that assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 15 agreed to.

Clause 213 ordered to stand part of the Bill.

Clause 214

Referral of matter to SSSNB for consideration

Nick Gibb: I beg to move amendment 372, in clause 214, page 123, line 25, after (a), insert
and to the desirability of promoting school autonomy..

Christopher Chope: With this it will be convenient to discuss the following: amendment 373, in clause 215, page 124, line 3, at end insert
(1A) In considering a matter within its remit, the SSSNB must have regard to the desirability of promoting school autonomy..
Amendment 374, in clause 217, page 124, line 35, at end add
(3) On making an order under subsection (2)(a), the Secretary of State must publish a statement explaining the predicted impact of the order on school autonomy..
Amendment 376, in clause 220, page 126, line 28, at end insert
(d) the agreement fails to give due consideration to the desirability of promoting school autonomy..
Amendment 375, in clause 220, page 126, line 29, at end add
(7) On making an order under subsection (2)(a), the Secretary of State must publish a statement explaining the predicted impact of the order on school autonomy..

Nick Gibb: These five amendments make the same point, but apply to different clauses on the School Support Staff Negotiating Body. They would ensure that the Secretary of State and the SSSNB have regard to the desirability of promoting school autonomy at all points in the decision-making process. They require the SSSNB to have regard to that point when making a decision and require the Secretary of State to make a statement on school autonomy when ratifying any agreement. They would also enable the Secretary of State to refer the agreement back to the SSSNB if it fails to take account of this issue.
Our concern is that schools that are autonomous and value their autonomy and freedom should not have that autonomy undermined by the existence of the SSSNB. When they enter into negotiations, the autonomy of schools must not be jeopardised by a national pay-bargaining agreement.

Jim Knight: I appreciate the hon. Gentlemans point. The member organisations that make up the negotiating body will of course include representatives of employers of school support staff, representatives of local government employers, FASNA, the Church of England education division and the Catholic Education Service.
During the oral evidence sessions, we heard from FASNA, which represents the governing bodies that are employers of support staff. It explained the need for any agreements reached by the negotiating body to include an appropriate level of flexibility. That flexibility is needed for schools to continue to choose the specific roles of their support staff and to deploy them in a way that meets the schools particular needs. Unison said it was confident that
flexibility can be built into it... Schools will be able to determine what their staffing structure is, what level of staff they want and what jobs they want the staff to do.[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 5 March 2009; c. 146, Q88.]
It is not only self-governing schools that will need that flexibility. Community voluntary aided schools, community special schools and maintained nursery schools all need flexibility to manage their staff in ways that allow them to address the challenges they face. The whole school work force must be managed in a way that supports personalised learning and development and focuses on pupil attainment.
There are already sufficient safeguards in the way that the voting membership is arranged to ensure that the needs of employee and employer will be catered for in any agreement. That will include the safeguarding of autonomy. There will be a fair and equal system with both sides voting on agreements. Clause 217 allows the Secretary of State to refer an agreement back to the SSSNB for a reconsideration if he thinks that it would be inappropriate to ratify it. Clause 220 allows him to refer an agreement that has been revised or resubmitted following reconsideration back to the SSSNB for further consideration if he believes that it would not be practicable to implement it. The Secretary of State may use that provision if he considers that an agreement fails to provide appropriate flexibility.
For those reasons, I do not think that the amendments are necessary. I ask the hon. Gentleman to withdraw the amendment.

Nick Gibb: I listened carefully to the Ministers response. He appears to have provided some reassurance. His words were read rapidly into the record. With the reservation that I would like to read them carefully at a better hour of the day, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 214 ordered to stand part of the Bill.

Clause 215

Consideration of other matters by SSSNB

Sharon Hodgson: I beg to move amendment 538, in clause 215, page 124, line 6, leave out subsection (3).

Christopher Chope: With this it will be convenient to discuss the following: amendment 539, in clause 216, page 124, line 15, leave out from agreement to make in line 16.
Amendment 541, in clause 216, page 124, line 16, leave out from agreement to end of line 19.
Amendment 542, in clause 217, page 124, line 30, leave out (a).
Amendment 544, in clause 219, page 125, line 12, leave out section 218(2)(b).
Amendment 545, in clause 219, page 125, line 34, leave out subsection (7).
Amendment 546, in clause 220, page 126, line 13, leave out paragraph (c).
Clause 218 stand part.

Sharon Hodgson: The support staff trade unionsGMB, Unison and Unitewarmly welcome the establishment of a national negotiating body for school support staff. It is also supported by head teacher and teacher organisations, governor representatives and employer organisations. As we know, support staff have grown in number and role under this Government, and they are the new professionals in schools.
The amendments would enable the SSSNB to function properly. I would have liked to say much more about the amendments, but in the interests of brevity I shall curtail my remarks to those that I have just made. I look forward to hearing from the Minister in due course.

Jim Knight: On amendment 538, clause 215 allows the negotiating body to consider and reach agreement on a matter within the remit of the body, regardless of whether the matter has been referred to it by the Secretary of State. Clause 215(3) provides that the body may, however, submit its agreement to the Secretary of State only if it has received the Secretary of States prior consent. The amendment would remove that requirement.
I understand the concern that has been raised that in a genuine negotiation, issues sometimes crop up at the last minute that need to be included in order to secure a negotiated agreement. That is why clause 215 is in the Bill. The amendment raises an interesting question, given all the safeguards that I mentioned in speaking to the last amendment, as to whether we need to have subsection (3) in the Bill. I will reflect on that, and if I decide that it is not necessary, I will bring something back on Report.
On amendments 539 to 544, if the negotiating body submits an agreement to the Secretary of State for his consideration, clause 216 requires it to accompany the submission with a recommendation about how the agreement should be implemented in schools. Clause 216 currently requires that the recommendation must set out whether the agreement should be ratified by the Secretary of State, which would require schools to comply with the agreement, or should be one which schools must have regard to. That is an important part of the flexibility that I spoke about earlier.
Clauses 217 and 218 set out the Secretary of States options if the negotiating bodys agreement is initially submitted to him with a recommendation. They are, therefore, inextricably linked to clause 216. The amendments would deprive the body of the option of recommending that the Secretary of State require schools to have regard to the agreement submitted, thereby, in effect, imposing a duty on the negotiating body to recommend that the Secretary of State make an order ratifying the agreement. As a consequence of the amendments, the Secretary of State would no longer be able to make an order requiring schools to have regard to an agreement submitted by the negotiating body.
At that stage in the proceedings, he would be limited to either making an order ratifying the agreement, or referring the agreement back to the negotiating body for consideration.

David Laws: On that specific point, under what circumstances would the Secretary of State be likely to make the order in clause 216(2)(b)in other words, to
make an order requiring persons specified in the recommendation to have regard to
rather than ratify the agreement?

Jim Knight: The negotiating body will be looking at a range of different issues, from pay and conditions through to training. Currently, such issues are negotiated through local government arrangements. The current arrangements involve a certain number of things that are applied locally; for example, around training matters. The national agreement is something that local determination has regard to. That is why we need flexibility.
The negotiating body itself may have a view on what schools should have regard to as opposed to what they must implement, but it is right to withhold for the Secretary of State the ability also to decide, on the recommendations of the negotiating body, what schools should have regard to and what they should implement. It is that flexibility that we are seeking to achieve.

David Laws: Will the Minister give way one last time?

Jim Knight: I will one last time, but then I must make progress.

David Laws: I am grateful to the Minister for being so patient. Can he clarify the Bill as it stands on that specific point? Does it, in effect, simply maintain the status quo on flexibility, or does it introduce an additional element of flexibility?

Jim Knight: As I understand it, the measure implements additional flexibility to allow the Secretary of State to influence things. While I understand the rationale behind my hon. Friends amendments and can see arguments both for and against requiring a body to make such a recommendation, the amendments would not achieve the desired result.
Amendment 546 is not inextricably linked to those that I have just discussed. Where the Secretary of State refers back to the negotiating body for reconsideration of an agreement that it has previously submitted, clause 220 provides the Secretary of State with a comprehensive and appropriate range of options for taking forward those agreements, once the negotiating body has resubmitted them. Where the negotiating body submits an agreement to the Secretary of State following reconsideration, the Secretary of State can make an order ratifying it or requiring schools to have regard to it. However, if the Secretary of State does not feel that it would be appropriate to do either of those things, he can either refer the agreement back to the negotiating body for further consideration, or, where there is an urgent need and further conditions are met as laid down in clause 220(5), he can make his own determination by order.
The amendment would remove the Secretary of States power to do that. It is not possible to say in advance what matters the negotiating body may be asked to consider or under what circumstances schools may be required to have regard to or to implement an agreement. It will be for the Secretary of State to consider such matters very carefully at the time, taking into account the nature and content of the agreement. To take away that option from the Secretary of State would be unwise and detrimental to schools, and it would severely limit flexibility, which is more important than ever in the constantly changing working environment in our schools. We are looking for the negotiating body agreements to achieve national consistency alongside appropriate local flexibility. I am aware that trade unions and employer representatives expect that some of the agreements that they reach will be appropriate for a have regard to order, and the amendment would remove that flexibility.
In summary, I know that trade unions are concerned that unless agreements are presented as required to implement orders, schools could ignore them, but there is no evidence that that will be the case. If the Secretary of State makes an order requiring employers to have regard to an agreement, all maintained schools and local authorities would be expected to implement the agreement, unless they can demonstrate a very good reason not to do so. With those reassurances, I hope that my hon. Friend will withdraw the amendment.

David Laws: The hon. Member for Gateshead, East and Washington, West has received a detailed response from the Minister on the important points that she has raised about a group of employees who do a valuable job within our school and college system. Will the Minister ensure that he informs the Committee if his judgment about the significance of clause 216(2)(b) is incorrect in any way? He said that he thought that it was the case that that provision, which the hon. Lady is effectively seeking to delete, is introducing new flexibility into the circumstances in relation to these staff.

Jim Knight: What I am referring to is the generality of the system and the powers that the Secretary of State has in respect of these clauses. The issue of have regard to has been the subject of much discussion. My understanding is that the entirety of these arrangements gives the Secretary of State a bit more power to ensure that there is flexibility under the National Joint Council arrangements.

David Laws: Clearly, that is an important issue. It is understandable that the employees and trade unions concerned will want to scrutinise the Bill to understand whether it gives additional flexibility that some people may welcome and think is sensible, or additional flexibility that undercuts what may be considered to be important employee rights. The perception of the significance of the debate would be affected if it were the case that additional flexibility was being introduced, as opposed to the Bill simply maintaining, even in a different form, the existing degree of flexibility. I am assuming that the Minister, who is normally extremely well briefed on these matters, is correct. I know that, having made that point, if anything that he said is not perfectly accurate, he will draw it to the attention of the Committee so that we can take it up at a later stage.

Sharon Hodgson: I am grateful to the Minister for his substantial and detailed response, especially at this hour of the morning. I listened carefully to what he said and I will read it even more carefully when it is published in Hansard, as will the trade unions that are supporting these fabulous support staff. Following his assurances, I am more than happy to withdraw the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 215 ordered to stand part of the Bill.

Christopher Chope: Before we move on to clause 216, I am going to suspend the Committee for 15 minutes so that we can get an update on what the plans are. I will suspend the Committee so that I am in a position to be able to inform the House authorities what the intentions areit seems that the intentions are different from those that were expressed to me by the hon. Member for Brent, South this evening.
I just put it on the record that I have now been in the Chair for some eight hours and that the Committee has been sitting for 12 and a half hours already. I hope that, by 3 am, the Government Whip, who I am sorry to see is not in the Committee, will be able to report on what the intentions of the Government are in relation to this matter. I hope that the usual channels will be involved.

Sitting suspended.

On resuming

Christopher Chope: I give the hon. Member for Brent, South an opportunity to bring us up to date on what has happened in the last quarter of an hour.

Dawn Butler: Thank you, Mr. Chope. First, I should like to put on record my thanks to the staff of the House for all their help today. There has been no formal agreement on how far we are going to get today. In fact, the provisional planning for the Committee, annexe 4, suggests that we should be way ahead of where we are at the moment. We have spent a lot of time discussing the Bill today and yesterday and we would like to continue with the progress we are making.

Christopher Chope: I hear what the hon. Lady says, but that is not sufficient for me in the Chair. I have to make a judgment as to the length of time for which I am going to suspend the Committee. Obviously, as the hon. Lady may know, it would be theoretically possible for this sitting to continue right through until all the business that was scheduled under the programme motion to take place on Tuesday has been completed. At the moment, under the programme motion, five and a half hours are available on Tuesday, and earlier a proposal was canvassed that the Committee would be able to sit until midnight on Tuesday, thereby extending the period by another three and a half or four hours or so.
We are talking about the possibility of eight hours business and the hon. Lady has said that we have not made as much progress as she would have liked. It seems implicit in what she is saying that she is fearful that eight hours will not be sufficient on Tuesday to cover all the ground, in which case she is inferring that there is more than eight hours business ahead of the Committee.
My co-Chairman, to whom I spoke before I volunteered to take over this afternoon, said to me that she had never, as a Member of the Chairmens Panel, experienced a Committee where there was so little co-operation with the Chairman. I expressed exactly the same opinion to her and I now put it on record openly, because the conventions of the House are that the Chairman is involved. If my co-Chairman and I had known that the intention was that we should sit until three oclock, I am sure that she would not have returned to her constituency, as she has. Therefore, I am left in the situation that I may be expected to do another 12 hours in the Chair, and I have already been up since early this morning. I have been in the Chair for eight hourswe have had a few breaks, but they are in addition to those hours. I feelmaybe the hon. Lady does not wish to inform methat I am entitled to know how long the Committee intends to sit.
That means the hon. Lady either giving a time when she will be minded to move that the Committee do adjourn, or an indication as to how far down the amendment paper she wishes to go before she moves the adjournment motion. I invite her to give me some more information because it is not just me in this position. There are a lot of other people in the House, as I have already pointed out. I would welcome her intervention so that she can help a bit more.

Dawn Butler: I am not quite sure what you meant by your reference to the Chairmans involvement, Mr. Chope, but as I said, quite clearly, we would like to continue making progress with the Bill. I thank you for your time in the ChairI think you are doing an excellent jobbut I would like to continue the Bills progress.
Further to that, I am also not sure whether there is a formula for the times that we break and the times that we sit, so you might want to clarify it, Mr. Chope.

Christopher Chope: Perhaps I can explain to the hon. Lady. As I said before, it is open to the Committee to carry on sitting until the whole Bill is completed and that might mean anything between eight and 12 hours more of sitting. If it is her wish to complete the Committees consideration of the Bill all in one sitting, it means that she will be expecting me to stay in the Chair for another eight or 12 hours. If that is her intention, or if that is in doubt, I have to take that into account in making a judgment as to what is a reasonable period for the Committee to be suspended. I invite the hon. Lady to give a bit more information, otherwise, having regard to what has happened up to now, I shall have to interpret what she is saying as an indication that it may be the Governments intention to go right through to the end of the business on the amendment paper.

Dawn Butler: Thank you for that clarification, Mr. Chope. I apologise for not being able to say what time we will finish, but at the beginning of the Committee the hon. Member for South Holland and The Deepings spoke for very long periods of time and not always to the Bill. I was unable to say when he would stop talking, so I could not say what time we would finish or even get to the clauses that we hoped to get to earlier on. We are ready to spend the number of hours that we would have spent if we sat on Tuesday deliberating the Bill. I do not think that there is a further eight hours ahead, so we should be able to complete the Bill in less time than that. Therefore, I should like us to continue making progress with the Bill.

David Laws: On a point of order, Mr. Chope. We all know why the sitting has been prolonged to this extent. It is to cover up the Governments embarrassment for losing a series of their own amendments through incompetence. What we are now experiencing is Labour Members being put in detention. I am happy to continue scrutinising the Bill, although the way in which the Government intend to do that, given that we have a full day on Tuesday, is not very rational, sensible or fair to you, Mr. Chope, or to all the staff who have to stay here in order for the usual channels on the Government side to make their political point. It would be more sensible to continue with deliberations on Tuesday. However, if it is the wish of the Government to continue to press this, we will be very happy to go on scrutinising the Bill for as long as is necessary. We are certainly not willing in any way to compromise on the scrutiny of the Bill.
If it is the Governments intention to continue, it would be sensible, Mr. Chope, for you to suspend this particular sitting for a few hours to give you an opportunity to have a break and to ensure that you are chairing the proceedings as they deserve to be chaired. Moreover, it would ensure that those who speak from the Front Bench on both sides are up to scratch with the matters they are having to debate. Those outside this place who look at the proceedings will not want to feel that we are scrutinising the Bill inadequately for political reasons associated with the Governments embarrassment yesterday morning. They will want to ensure that you, Mr. Chope, and Committee members are able to do their job properly. We will be better able to do that if we suspend the sitting for a period of hours and then, if necessary, continue throughout tomorrow.

Christopher Chope: I do not know if anyone else wants to contribute, but it seems from what the hon. Member for Brent, South has just said that it is the intention of the Government to carry on this sitting until we conclude the Bill. I will stand corrected if that is not the correct interpretation. If that is the right interpretation, I will consider for what length of period we should suspend the sitting. I will sit down briefly to enable her to confirm or deny that that is the intention of the Government.

Mary Creagh: From the point of view of Back Benchers, Mr. Chope, I should like to say that many of us have constituency engagementsas I am sure is probably the case for all hon. Members. If the Government intend to continue, as appears to be the case, it might be a better use of our time to see how far we can get during the next hour or two, and to review the situation then, with the agreement of the usual channels. To go now, and then return at 6, 7 or 8 oclock, would cause more disruption for me, given that I have child care responsibilities, than if I just got on the Wakefield train at 6 oclock this morning. That hour is rapidly approaching.

David Laws: Further to that point of order, Mr. Chope. If Government Members are so keen to ensure that they are back in their constituencies tomorrow, for child care and other responsibilities, surely we should continue this sitting properly on Tuesday. That would give us an entire days sitting in which to finish what little remains to be done. However, if the Government intend to pursue their course, we are more than happy to remain, but it would be sensible to have a suspension for a few hours, for the reasons that I gave earlier.

Christopher Chope: The hon. Member for Brent, South said that we have not yet reached the point in the Bill at which the Government want to begin on Tuesday. I am not privy to what that point is, but perhaps it is where she wants to get to during the next hour or so. However, unless I get some more information, I cannot identify that point nor make a judgment about it. I take to heart the hon. Gentlemans point about the need for people to address properly and with a clear head the very important issues in the Bill. I do not know whether the Minister wishes to comment on that. He needs to take into account the fact that he and his ministerial team have been changing places during the course of the day. We have now been sitting for well over 12 and a half hours. We have made very good progress and have completed much of the Bill. As far as I can tell, we have disposed of some 48 groups of amendments, and a further 17 remain on the order paper. We have dealt with 90 clauses, six schedules and about 85 Government amendments. I would have thought it reasonable to say at some stage, Well, the rest of the business can be dealt with on Tuesday, in accordance with the programme motion. However, I am in the Committees hands, and unless I can get some more information, I shall take it that the Committees intention is that I should sit in the Chair until the whole of our proceedings are completed.

Jim Knight: Mr. Chope, as I said earlier, I fully appreciate the strain on you and the staffboth parliamentary and departmentalwho have been serving us so well. I am very grateful to them for that. However, it would seem that only at this time of day and night can we make good progress in our consideration of the Bill. I certainly suggest that we finish this and the next part, and then consider whether we have achieved good progress.

Christopher Chope: I am sorry, but I missed the Ministers peroration.

Jim Knight: I am suggesting that it might help the Committee to complete parts 10 and 11 and then consider whether that progress is sufficient. We will make a decision at that point.

David Laws: On a point of order, Mr. Chope. I am not really satisfied with the Ministers proposal, especially given that those parts of the Bill are incredibly important. They were very controversial when we took evidence from outside bodies. We shall want to give considerable scrutiny to those parts of the Bill, spending some time on them. I am not convinced that we can do that in a short period. I am happy to do it later this morning, but I suggest that a short suspension would be helpful if the usual channels and the Government insist on taking the matter further today.

Emily Thornberry: On a point of order, Mr. Chope. One of the most helpful contributions that the hon. Member for Yeovil has made was the one before lastit was the most helpful comment that he has made for several hours. He said that there is little in reality to fill an entire day. That is helpful in terms of estimating how long this is likely to take. I was interested to hear you, Mr. Chope, suggest that it might take between eight and 12 hours. We seem largely to be in the hands of the hon. Member for Yeovil as to how long the matter will take. If he estimates that it will not take an entire day to finish, I suggest that we press on.

Siôn Simon: Further to that point of order, Mr. Chope. I want to echo and slightly develop my hon. Friends point. While we turn to my hon. Friend the Member for Brent, South for guidance, it is not entirely surprising that she cannot give us a time by which we can expect to have made real progress, because, as my hon. Friend the Member for Islington, South and Finsbury has said, our time is controlled not by the usual channels but by the Opposition, particularly the hon. Member for Yeovil. Reading out the Bill has not expedited our business this evening.

Christopher Chope: I have asked for a specific point in the Bill or a time, but I have not received either, so we do not seem to have made much progress through the usual channels.

Clauses 216 to 228 ordered to stand part of the Bill.

Clause 229

Power of members of staff to search pupils for prohibited items: England

Nick Gibb: I beg to move amendment 209, in clause 229, page 130, line 16, at end insert
(aa) has reasonable grounds for suspecting that a pupil at the school may have an item that, in the judgement of a member of staff, may present harm to other pupils, staff or teachers;.

Christopher Chope: With this it will be convenient to discuss the following: amendment 337, in clause 229, page 130, line 19, at end insert
(2A) In determining whether there are reasonable grounds under subsection (1)(a), the member of staff may have access to any CCTV footage that the school may have..
Amendment 353, in clause 229, page 130, line 26, leave out paragraph (c) and insert
(c) any other item which, if it were to remain with the pupil or in his possession, may constitute a risk of imminent harm to the pupil himself or to any other person;.
Amendment 14, in clause 229, page 130, line 31, at end insert
(f) any other article which the member of staff considers may cause potential or imminent harm to the pupil or to others..
Amendment 90, in clause 229, page 130, line 31, at end insert
(f) any other item prohibited by the published rules of the school..
Amendment 95, in clause 231, page 133, line 41, at end insert
(f) any other item prohibited by the published rules of the college..

Nick Gibb: We are now debating a very important part of the Bill, which concerns behaviour in schools. This is one of the problems that parents and teachers raised with us many times. Poor behaviour in our schools is one of the key reasons why teachers leave the teaching profession. It is also a key reason why many people who might be tempted to enter the teaching profession refuse to do so. Those people know that in too many of our schools persistent low-level disruption is the order of the day. We therefore need the provisions set out in clause 229 to give teachers more powers, for example, to search pupils for prohibited items.
The clause is very restrictive on the items for which teachers are allowed to search. For example, in proposed new section 550ZA of the Education Act 1996, teachers are given powers to search for knives in subsection (3)(a), offensive weapons in subsection (3)(b), alcohol in subsection (3)(c), controlled drugs in subsection (3)(d) and a stolen article in subsection (3)(e). That is a very prescriptive and exhaustive list. What about other items? The hon. Member for Yeovil has pointed out before that violent pornography does not seem to be listed. There may be other items that the school has banned in its school rules and which teachers should have the power to search for. Again that is not provided for in this clause.
Amendment 209 says that if the teacher has reasonable grounds for suspecting that a pupil at the school may have an item that in the judgment of a member of staff may present harm to other pupils, staff or teachers, that will be regarded as grounds for the teacher to conduct a search. Amendment 337 says that in determining whether there are reasonable grounds under subsection (1)(a), the member of staff may have access to any CCTV footage that the school may have. That might seem an odd amendment but there was a case reported in The Daily Telegraph recently where a teacher wanted to see CCTV footage of a classroom where poor behaviour was recorded, but was refused access to it because of the Human Rights Act. We have to make it clear that teachers have the right to examine such footage.
Amendment 353 says that any other item can also be searched for if, were it to remain with a pupil or in his possession, it constitutes a risk of imminent harm to the pupil or to other people. This issue was brought up during the evidence sessions of the Committee by the representative from the teaching unions. It is a very real concern that that power to search seems to be missing from this important clause giving. Amendment 95 adds a sixth item to the five items that can be searched for under subsection (3), namely any item that is prohibited by the rules of the school. That is the most important amendment, because in some ways it is not the item that is important but the fact that their child is deliberately disobeying a school rule. Being able to enforce school rules is probably even more important than confiscating the items listed in subsection 3(e), because it is about the credibility of the head teacher and the ability of teachers to maintain discipline in the school. Unless they can do that, violence will break out in the school and poor behaviour will proliferate not just within the school grounds, but out in the community.
Teachers have to be given real powers to tackle poor behaviour, because unless we tackle poor behaviour in our schools, we will not see a rise in the standard of education for schools, pupils or the country as a whole. Ofsted reports that 43 per cent. of schools in this country are not good enough. One of the key factors that renders them not good enough is poor behaviour. Teachers say that they simply do not have the power to instil discipline and good behaviour in our schools. One reason why they do not have that power is a lack of credibility. We on the Conservative Benches also believe strongly that head teachers should have the power to exclude pupils without such decisions being second-guessed by an independent appeals panel.
I would be grateful if the Minister were to explain why the list of items that can be searched for is so restrictive. Why is it confined to knives, offensive weapons, alcohol, controlled drugs and stolen articles, and why does it not apply to, for example, mobile phones, computer games or pornography, which also should not be on the person of a pupil at a school? During the evidence sessions with the Minister, it appeared that one reason might be the Human Rights Act 1998 or other legislation that protects the rights of a child in respect of possession of such items. But if those items are banned by the school rules, it should be perfectly within the legal right of schools to confiscate and search for them, if they were included in the provision, without contravening the Human Rights Act. Perhaps the fact that there is no home-school contract signed by parents, students and the school before the children enter the school is a reason why such action would contravene other Acts of Parliament, if items beyond those listed here were to be the subject of a search of a pupil. If that is so, the answeragain, this is Conservative policyis for a home-school contract to be a condition of admission to a school.
The Minister has on many occasions expressed opposition to that policy, on the grounds that, if a pupil has a particularly poor parent who refuses to sign such an agreement, for whatever reason, that pupil should not suffer as a consequence, but that would then be an issue for social services and other departments to look into. If such clear evidence of poor parenting were presented, it would be an early warning sign to the social services department at the local authority that there was a problem. Otherwise there is no reason why a parent would not sign an agreement that simply says that the child, on entering the school, will abide by the school rules. If the school rules say that certain items are prohibited in the school, I see no reason why those items cannot be searched for, within the provisions in the clause, by teachers, head teachers or staff so authorised by the head teacher.
With those few words, I look forward to hearing the Ministers response to this first group of amendments.

David Laws: This is an important clause, as the hon. Gentleman has explained. We think the amendments are valuable in seeking to strike a sensible balance between the powers to search that a school should have and the legitimate considerations about the confidentiality of pupils items. In the clause, the Government give teachers additional powers to search not only for weapons but for illegal drugs, alcohol and stolen property.
I understand that the Minister is trying to be helpful and to ensure that instead of the existing restriction to weapons, specific provision is made for drugs, alcohol and stolen property. However, there are some problems, one of which is that as soon as Ministers put a specific list such as this on the face of the Bill, head teachers, teachers, governing bodies and local government will understandably conclude that it is not reasonable for staff to search for items not included in the list.
We know from our evidence sessions that a number of the teaching unions are concerned about the effects of clause 229 and want it either deleted or amended to take proper account of their considerations. They understand that it is sometimes necessary to search in circumstances where there may not only be a weapon. I suspect that it is already the casethe Minister will correct me, if I am wrongthat when they think it proper, head teachers routinely search for illegal drugs, alcohol and even stolen property. However, by proscribing those particular items, the Government are opening themselves up to the accusation that they are leaving out a lot of items of great concern for which head teachers, teachers and others, including governing bodies, might legitimately expect that powers to search exist.
An interesting exchange that I cannot cite, as I do not have the papers to hand, took place involving one of the Conservative Committee members during our evidence session. He challenged the notion that children should automatically be presumed to have rights of protection in relation to most or all of their property and the ability to search it. He rightly pointed out that head teachers, teachers and governing bodies are, to a large extent, in loco parentis when young people are in school and that their responsibilities and powers ought therefore to mirror in many ways the freedoms that parents have in the home environment, particularly with regard to items that could endanger either the child concerned or other children in the school.
We had some interesting exchanges about that matter in Committee on 10 March, during an evidence session. I questioned the Under-Secretary of State for Children, Schools and Families, the hon. Member for Portsmouth, North about whether she intended under clause 229 to exclude powers to search for hard pornography, which was mentioned earlier by the hon. Member for Bognor Regis and Littlehampton. She was commendably direct in sayingI assume that she will confirm it todaythat she has no intention of allowing it to be possible for head teachers, teaching staff and governing bodies to search within a school, even for hard pornography and, presumably, even if it is suggested that a pupil not only possesses hard pornography but seeks to sell or market it in some other way to other pupils. That leads us to the inescapable, but somewhat bizarre, conclusion that a head teacher or a teacher wishing to search pupils possessions or a locker, for an item such as hard pornography would find that they were unable to do so. However, presumably under the Bill, if a student were suspected of having alcopops or cider in their locker, there would be powers for the head teacher to search for that item. Most people outside this placepress comment has already been made about the issuewould be absolutely astonished that the Government intend such action under clause 229.
By putting such powers in the Bill in respect of items that it will be permissible to search for, head teachers will conclude that, rather than expanding the range of items that can be searched for, which seems to be the intention of the Minister, it will be made more difficult for them to exercise their judgment in determining which items should be searched for when they pose a risk to other students in the school and potentially individuals outside the school. It will create an extra element of bureaucracy for teachers and head teachers when doing their job.
The much respected John Dunford, the leader of the Association of School and College Leaders, has been critical of many aspects of the Bill and its degree of prescription. He said that additional burdens will make it difficult for schools to discharge their responsibilities and that it will make it particularly difficult for school leaders, who are a critical resource. We have already dealt with the complaints that Mr. Dunford is seriously worried about. Head teachers really do not need additional burdens of bureaucracy or obligations. They fear that the provisions will not only make schools a more dangerous place for students, but will make the job of being a head teacher or even a teacher much more challenging.
I asked the Under-Secretary of State for Children, Schools and Families, the hon. Member for Portsmouth, North, about her response to the issue of hard pornography and whether she would be willing for head teachers and teachers not to have the power to search for it. She replied:
It is a choice between not making a prescriptive list covering absolutely everything that you would not want schoolchildren to have and a balanced power. We believe that the additional powers covering drugs, alcohol and stolen goods are appropriate.
I understand that a balance might be struck between the need to protect to some extent the rights and freedoms of students and pupils, because I am not sure that any of us wants to give a completely open-ended power to schools to carry out a general trawl of all lockers on a regular basis. It is sensible to have some regulations and guidance within which head teachers and teachers have to operate. Surely the risk from the Governments strategy is that, by specifying more clearly than is currently the case what can be searched for and not including some important items, they will make it difficult for head teachers to do their jobs.
I posed that point to the Under-Secretary after she said that she is relaxed about head teachers not being allowed to search for items such as hard pornography. She replied:
We have data suggesting that drugs, alcohol and stolen goods are in schools, but we do not at this stage have evidence that there is a significant problem with pornography being taken into schools. We can extend powers further if a justifiable need occurs, but at this stage we do not believe that that is required.[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 10 March 2009; c. 164, Q383 and Q384.]
That raises several concerns, the first of which is what the data show at present and whether they are reliable. To my knowledge, the Committee does not have access to the information to which the Minister has referred about the extent to which drugs, alcohol and stolen goods are a problem in schools, and the extent to which they are searched for and seized. If there is such information and it compares those items with hard pornography, can we see it, because it would be useful in making our assessment?

Mary Creagh: I have been listening with great interest to the hon. Gentlemans peroration on hardcore pornography. Will he clarify his partys position on the possession of such pornography, with particular reference to 16 to 18-year-olds who might be in a schools sixth form? I remember a Liberal Democrat conference a couple of years ago passing a motion that it was party policy that hardcore pornography should be available at 16; is that no longer the case?

David Laws: I am afraid that the hon. Lady is out of date and has not been following my partys proceedings closely. She is clearly concerned about hardcore pornography, so I am delighted that she is taking part in this important debate, but is she actually happy to support the Governments position?

Mary Creagh: I am asking about the hon. Gentlemans position.

David Laws: Well, I have explained my position. It is very clear[Interruption.]

Christopher Chope: Order.

David Laws: Thank you, Mr. Chope. I would be delighted if the hon. Lady were to make a speech on the issue later, and I hope that she will indicate whether she supports the rather extraordinary limitations that the Bill places on the power to search. The provisions are not sensible and will amaze most people outside Parliament and strike them as completely dotty, particularly as there are powers to search for items that are far less dangerous. I think that most head teachers agree with the majority of teaching unions that the provisions are not sensible.
During the evidence session on 10 March, the Minister said:
We can extend powers further if a justifiable need occurs, but at this stage we do not believe that that is required.[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 10 March 2009; c. 164, Q384.]
Is it really sensible to go about things in that way? The Minister suggests that there is currently no evidence that hardcore pornography is a problem, but we will discover whether that is the case when she responds and tells us what the statistics show in that regard, as well as whether they are reliable in relation to items such as drugs, alcohol and stolen goods, for which there are no powers to search at present.
Is it sensible not to include powers to search for hard-core pornography, even if it is not currently considered to be a huge issue? Are we really suggesting that we come back to legislate in yet another Committee, take up the officials time and incur additional expenditure simply to insert a power into the Bill that any sensible person would believe that a head teacher should already have? It is stunning and amazing that the Government do not believe that such a power is needed.
There are also interesting questions about other items that are not covered by the Bill. The Bill lists drugs, alcohol and stolen goods, and mentions the existing definition of weapons. Will the Minister let us know how the existing legislation currently defines weapons? That is directly relevant to our amendments on the issue, because the provisions prescribe an inflexible list of items that will inevitably exclude others, on which head teachers and teachers should be allowed to make a judgment. There is a danger that we will exclude some items that are not currently considered to be weapons but that may be used as such in the future. That would not be sensible.
Youngsters often have crazes; there was one a couple of years ago, for example, that, rather than involving a hidden item, involved an activity that was inspired by a media advert. The situation became quite dangerous, and the practice was banned in many schools. There will be items that fall outside the Bills list that sensible head teachers, governing bodies and staff will not want to be circulated in their schools. It would therefore surely be appropriate for the Bills powers to be framed in such a way that we do not have to keep adding new items. We should not treat head teachers, teachers and governors like children; they are adults and responsible people who should be allowed to make judgments.
During the evidence session, the Minister made an interesting comment about why the Government had reached their conclusion:
We are following the recommendations from Sir Alan Steers report, and we believe that additional powers to search drugs, alcohol and stolen goods are sufficient...That does not rule out searching for other items in the future.[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 10 March 2009; c. 164, Q384.]
Later in the same evidence session, we heard further evidence on the issue under cross-questioning by my hon. Friend the Member for Mid-Dorset and North Poole. She is insightful and well informed on the issue, and she probed Ministers about Sir Alan Steers report. Those discussions made it clear that independent bodies have recommended that there should be a more general power to search. If I have got that wrongI do not want to waste the Committees timeI hope the Minister will intervene on me immediately with enthusiasm to prevent me from making any errors.
If it was true that Sir Alan Steer or others advising the Government suggested that there should be a general power to search, it would be odd that the Government had come forward with the specific proposals in the Bill, which create the concerns that lead to the amendments in the group. We need some further clarification on that, because when I further asked the Minister for Schools and Learners about that issue on 10 March in the witness sessions for Ministers, there seemed to be a great deal of uncertainty. I said:
You will be aware that a couple of amendments have been tabled to clause 229 that do not give a general power to search, but that would widen the power to cover items, for example, that threatened potential or imminent harm to pupils; another Tory amendment refers to items banned by the school. Presumably you have not taken any legal advice on whether that would be an acceptable, wider power that would not have the same implications as a general power. Perhaps you could answer that last question before the two opening questions.
Interestingly, the Minister replied:
Obviously, to some extent those are things that we can discuss when we get to the debates on those clauses.[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 10 March 2009; c. 186, Q457.]
In other words, the Government did not have an answer.
I expect a clear explanation from the Minister today, particularly because as it is relevant not only to this group of amendments, but to all those that we will discuss under the clause. It will be useful to have a clear explanation of why the Government have chosen to go down the course of having the specific power that excludes some important items, rather than a general power. Is it, for example, that the Government have been told that were there to be a general power to search, it would effectively be illegal because it would be in breach of childrens rights or human rights? The evidence given to the Committee by the Ministers was not only unclear, but seemingly contradictory to the Steer report in many respects, and seemingly inaccuratealthough I believe that the Parliamentary Under-Secretary of State for Children, Schools and Families may have corrected herself later. Unfortunately, I tore out a page from the Official Report for the Committee evidence session to use in previous speech, and I do not have that quote to hand. However, I know that the Minister will correct me enthusiastically if I am getting this wrong.
The crucial issues that the amendments address are: why have the Government chosen not to go for a general power of search, and if they decided not to go for it because they believed that it would be open to legal challenge, have they made a mistake by not going for a more general power such as that contained in amendment 14, and in one of the Conservative amendments that we will come on to in a moment?
Jim Knightclaimed to move the closure (Standing Order No. 36), but the Chairman withheld his assent and declined to put that Question.

David Laws: I respect the right hon. Gentleman enormously, both as a Minister and as an MP in my region, but I am sure that he would not want others to read the proceedings of the Committee only to discover that, for party or other reasons, he had cut off a debate that was genuinely important. Frankly, even without the present background, I would want to explore the clause in detail. The number of amendments that have been tabled show that this is not an attempt at a long-winded intervention. We are debating a serious matter.
In deciding whether amendment 209 and the others in this group are a sensible solution to the problems, it is crucial to know whether the Government have considered the possibility of having some sort of mid-way power that sits between a general power to searchthat might be too wide, although it seems that that is what Sir Alan Steer recommendedand a power to search involving proscription of the type suggested by Ministers.
Some of the amendments in this group could be immensely useful to the Government and might offer a way forwarda sensible compromise. I wish to comment on not only amendment 14, but some of the amendments tabled by the hon. Member for Bognor Regis and Littlehampton, to which he has already spoken, and which are important and useful.
Amendment 209 is a proposal from the Conservative party to add a refinement to the powers to be granted under clause 229. It allows for a power to search when there are reasonable grounds for suspecting that
a pupil at the school may have an item that, in the judgement of a member of staff, may present harm to other pupils, staff or teachers.
That is precisely the sort of sensible compromise amendment that might be welcomed by head teachers.
Even though we are at a late houror an early hour, depending on how one looks at itand although the Minister may be tempted to give short shrift to anything at the moment, I hope that we will hear a positive response that not only sets out the reasons why the Government have taken this course, but explains why a provision of this sort might not be more sensible than the Governments proposal. The amendment would ensure that the powers were not too widely defined, and thus would not fall foul of a reasonable persons view of what powers a head teacher or teacher should have, but would be not so narrowly defined that sensible head teachers, governing bodies and teachers would find that they were operating under totally barmy restrictions that did not allow them to do their job properly. I would certainly be willing to support that amendment if the hon. Gentleman was minded to press it to a Division.
Amendment 337, which was also tabled by the hon. Member for Bognor Regis and Littlehampton, would insert an additional condition in clause 229(2), which deals with the powers that a member of staff may have to search a pupil or pupils. The hon. Gentleman seeks to add the following words:
In determining whether there are reasonable grounds under subsection (1)(a), the member of staff may have access to any CCTV footage that the school may have.
That is a sensible proposal. It is a sad fact that many schools have CCTV cameras. One would not have dreamed that it could happen, except in the John Cleese filmI have forgotten the titlethat starts with a head teacher using a CCTV camera. Many schools now have CCTV cameras and it would be sensible, given the importance of these items and the risks involved, if the footage were allowed to be used. Clarification would be useful of whether the powers to search are to be based on evidence, rather than being general. I understand that the concern about the general power relates to not just the legal issues and human rights, but the power perhaps being abused by schools to trawl lockers on a general basis and without evidence. This useful amendment would indicate that there ought to be an evidential basis for head teachers and teachers taking action.
Amendment 353, which was also tabled by the hon. Member for Bognor Regis and Littlehampton, is also useful. In proposed new subsection 550ZA(3), which describes what are considered to be prohibited items, the amendment would replace paragraph (c) with
any other item which, if it were to remain with the pupil or in his possession, may constitute a risk of imminent harm to the pupil himself or to any other person.
That is similar to amendment 14, which stands in my name and that of my colleagues who have been wise enough to charge me with speaking to these provisions and therefore leave earlier. That amendment would add another prohibited item to the list of items in proposed new subsection (3):
any other article which the member of staff considers may cause potential or imminent harm to the pupil or to others.
It would address some of the concerns that I raised earlier. Unless my memory is flawedas it may be at this time of the morningthe amendment was suggested to me by the National Union of Teachers. It gave very helpful evidence to the Committee based on its enormous experience in this area. It represents tens of thousands of teachers across the country, and even some head teachers, and many of those members would be faced with the practical difficulties of implementing the narrow powers to search contained in this clause. I hope that the Government will accept something like either amendment 14 or amendment 353.
Amendment 90 takes another approach, which is also a sensible alternative. It was tabled by the hon. Member for Bognor Regis and Littlehampton, although I do not know whether it was recommended by some wise person in the world of education. [Interruption.] Yes it wasthe hon. Gentleman himself. The amendment would define which items should be prohibited more narrowly through the use of a general power to search, but more widely and sensibly than in the Bill. It does so by stating very common-sensicallyif that is a wordthat the head teacher and staff should have the power to search for any other item that is prohibited by the published rules of the school. That amendment is extremely sensible, and it would be very odd if a head teacher or a teacher were not given such a power.
My viewwe will hear from the Minister whether it is accurateis that if we accepted either amendment 14 or amendment 353, or amendment 90which is coupled with amendment 95 on the college sectorwe would have a far more pragmatic and realistic power to search. With amendment 14 or amendment 353, the power would be constrained to items that might cause potential or imminent harm, which could include a far wider range of items than set out by the Government, but would not be a general power to search, and the other route that has been suggested, almost as an alternative to amendments 14 and 353, would simply base the power on the published rules of the school.
I see no reasons why parents would not be extremely happy to know that, were their child to bring in an item prohibited by that school or college, the head teacher or another member of staff would have the power to search for it. That seems extremely sensible, and in my view it could get the Government around the problem of trying to deal with the potential problems of a general power of search while ending up with a list of items that is frankly incomplete. As the Minister has been so constructive, thoughtful, patient and unhurried today, I hope that she will give the issue and the amendments the consideration they deserve.

Sarah McCarthy-Fry: Amendments 209, 353 and 14 would broaden the scope of the clause to include items likely to cause harm, and amendment 353 would also remove the specific reference to alcohol. I understand why hon. Members want to widen the scope of the clause in such a way, but I do not believe that to be necessary. The current weapon-search powers, which the clause will re-enact, already enable teachers to search for any article made or adapted for causing injury, or intended by the person carrying it to be used to cause injury. That covers much of what is proposed by the amendments with regard to items causing harm to other pupils.
Both alcohol and illegal drugs were specified by Sir Alan Steer. He did recommend a general search power when responding to a question from the hon. Member for Yeovil, but he particularly highlighted alcohol, drugs and stolen property.

David Laws: The Minister has usefully corrected the evidence she gave the Committee on a page of the report that I do not havein fairness, she might have corrected it later in our proceedings. Will she indicate why she has rejected the general power to search that Sir Alan Steer recommended?

Sarah McCarthy-Fry: I will get to that point if the hon. Gentleman is patient and does not jump up to intervene.
Both alcohol and illegal drugs were specified by Sir Alan Steer, following consultation with fellow practitioners, as items used by pupils to harm themselves. Both will be specified for the first time under the new search powers, together with stolen property, which Sir Alan also highlighted as an issue.
Items contrary to a schools behaviour policy, as suggested by amendments 90 and 95, were also included in Sir Alans recommendation on the extension of the search powers, and we considered that when drafting the clause. I agree that we could have had a longer list or a more general power, as the amendments suggest, but there are clear reasons for not doing so. First, we want to ensure that any potential interference in a pupils rights under article 8 of the European convention on human rights is reasonable and proportionate. Secondly, alcohol, controlled drugs and stolen property are the items that schools are most likely to want to search for.
The hon. Gentleman asked me what data we had on that. In 2006-07, there were 400 permanent exclusions relating to drugs and alcohol and 210 permanent exclusions for theft. Of the fixed-period exclusions recorded, 8,180 were related to drugs and alcohol and 9,440 to theft. Bullying data from the longitudinal survey of young people in England tell us that 3 per cent. of 13 to 14-year-olds had been made to hand over money or possessions to bullies in the previous 12 months. According to the Home Offices 2006 crime survey, 9 per cent. of 10 to 17-year-olds spoken to reported stealing something at school in the previous 12 months. In a survey of 1,500 teachers for the NUT published in 2008, 20 per cent. of respondents reported witnessing possession of drugs within their school in the preceding year, and over 20 per cent. reported witnessing the possession of an offensive weapon in the preceding year.
The hon. Gentleman mentioned pornography, but we simply do not have evidence that a power to search for pornography is needed. Schools can, of course, search young people with their consent, and if pornography is found, they have the power to confiscate it. His proposal would allow search without consent.

David Laws: I apologise if I missed part of the Ministers speech as I try to juggle these different amendments, but did she refer a moment ago to evidence on the number of occasions on which alcohol was searched for and found in schools in the past few years?

Sarah McCarthy-Fry: The evidence I gave was of the number of drug and alcohol-related permanent and fixed-period exclusions, and the survey of teachers, which showed that 20 per cent. of respondents reported witnessing possession of drugs within their school. By limiting the scope of the clause to five specific itemsknives and blades, offensive weapons, alcohol, illegal drugs and stolen itemswe are confident that any breach of a learners right to privacy is in each case justifiable and proportionate. These items are either potentially dangerous to other pupils or the cause of serious disruption to the school. Furthermore, schools and colleges are responsible for developing their own rules for learner behaviour, and including items contrary to the behaviour policy would leave learners open to personal interference in relation to any item that a school or college might introduce within its rules. It might be helpful if I tell the Committee what schools can and cannot do in respect of their behaviour policy. They can make clear in their rules and in communications to parents that certain items are unacceptable, they can punish pupils who are found in possession of such items and they have the power to discipline under the Education and Inspections Act 2006.

Nick Gibb: How will schools find a child in possession of an item prohibited by the school rules if they are not permitted to search for them under the provisions of this clause?

Sarah McCarthy-Fry: I am making the point that they have certain powers without the power to search without consent. They can instruct a pupil to turn out their pockets or bag. They can confiscate, retain or destroy items if they find them. School and college staff need to be clear about what they can and cannot search for, otherwise we risk causing confusion and uncertainty. We will, of course, ensure that our new guidance gives staff the clarity that they need to use the new powers appropriately and professionally.
I want to turn to amendment 337 because I wish to assure hon. Members that it would be permissible under the Data Protection Act for school staff to view CCTV footage to establish whether a pupil has brought a prohibited item into school, so there is no need to specify that in the Bill. For the avoidance of doubt we will make this clear in our revised guidance. I hope that the hon. Gentlemen will not press their amendments.

David Laws: I thank the Minister for giving anot entirelyfull response to the Committee, particularly in the light of the length of time for which she has had to lead for the Government on the Bill in this sitting and the wide range of issues she has had to deal with. She has been at all times extremely helpful to the Committee. However, I still have a couple of concerns about the Governments position.
First, I am not clearagain I apologise if I missed a part of the hon. Ladys expositionwhy the Government have decided to go down this route. My recollection from the Committee hearing when we took evidence from the Ministerand I confess I do not have the relevant quote handywas that there was some indication that there might be a legal concern about the general power to search, which was why I questioned the Minister for Schools and Learners about this. The hon. Lady did touch on the Governments reasons for making the judgment, but she did not say whether this was primarily a legal judgment, and whether she felt the Government might be open to challenge if the power to search were too wide, or she was making her judgment because she thinks that the rights, freedoms, protections and privacy of youngsters should be given as high a priority as possible and she thus wished to constrain the number of proscribed items to the priority ones. I would be grateful if she could clarify that, as it is obviously enormously significant. I would also be grateful if she could confirm that there is nothing in this particular group of Opposition amendments that would be illegal. I ask because it seems to me that the amendments are so obviously superior to the Governments position that I cannot help but feel that the Minister must think that they might be perceived to be illegal and thus that they would not stand up to the scrutiny that exists in relation to human rights these days, which is admittedly quite extensive. If that is the case, we need to know that here and now.
I think that we are bound to return to this issue, either on Report or in another place. We know that our noble Friends at the other end of the corridor do a very thorough job of scrutinising Bills and that they also have a great deal of legal expertise. I think that they will want their debate to be informed by legal realities rather than the instincts of a Minister. They will want to know the fundamental objections to this different approach.
My second concern about the Ministers position relates to the evidence that she is offering to the Committee. I am not aware that she cited any particular statistics in relation to pornography, be it hard or otherwise. I am not clear whether that was because there is a lack of data on the subject, or because the data that exist indicate that there have not been many occasions when these powers have been used. However, I wonder if part of the reason why she is not able to cite any evidence is that information on measures that she has discussed and referred to in relation to other proscribed items is more likely to be collected by schools and, potentially, local authorities. In other words, is it the case that although pornographyhard or softis a very serious matter, some head teachers might be seeking to deal with it in a way that is well short of the types of sanctions that might trigger a reporting process?
When the Minister cited evidence about the items that she selected for this particular measure, I think that she indicated that, in relation to drugs and alcohol, she was talking about permanent exclusions, although I might be wrong and she may have referred to temporary exclusionsperhaps she will clarify that point. However, she was certainly relying on exclusions as a proxy for the number of cases of drug and alcohol abuse. It may be the case that that proxy is reliable for capturing some sense of the scale of drug and alcohol problems, but not for capturing some sense of the scale of the problems relating to pornography. In fact, I might have misquoted the Minister, in which case she may want to correct me.
I think that the Minister also referred to evidence on school staff witnessing drug incidents, so she was relying on data reported by staff members. It may have been that the exclusions related to weapons. If the Minister could confirm that that was the case, that would be useful.
My point stands, however, because I am not quite sure that the evidential basis that the Government are using is reliable. Also, I am unsure that what we are not picking up from the statistics that the Minister cited is the propensity for particular prohibited itemsor, as it may be, non-prohibited itemsto be identified by schools as serious.
I think that I was mildly convinced by the Ministers comments about weapons. I was not quick enough to write down precisely what she said, but she appeared to indicate that the legislation relating to weapons is quite widely drawn. Although I was trying to think of a way of catching her out, it seemed to me that most of the items that sprang immediately into my mind might be covered by the definition of weapons. Having said that, given the risk of weaponry developing in unexpected ways, I would want to reflect on that definition before the later stages of the Bill.
However, I am afraid that I still cannot accept the Ministers judgment that schools and head teachers should not be empowered to search for soft or hard pornography. I repeat the point that in the media, in the Chamber and among our constituents, there will be amazement that the Government are prepared to pass legislation that prohibits a series of items, including alcopops and cider, but that leaves teachers and head teachers absolutely powerless to intervene when they think that hard pornography is being marketed or spread throughout a school by a student. That is a deeply irresponsible position for the Government to take, and it will cause great concern among head teachers and governing bodies throughout the country.

Nick Gibb: I listened carefully to the hon. Member for Yeovil and to the Minister. The latter recited the definition of a weapon. I presume that I missed the citation, but I presume that she cited the Prevention of Crime Act 1953the clause refers to its definition of an offensive weapon. If my interpretation is right, she gave quite a wide definition, as the hon. Gentleman said, to include anything that would essentially cause injurythe Minister used those wordsbut not necessarily cause harm.
I am concerned about that because more things than items that could fall within a definition of an offensive weapon can cause harm. Some things may well, from what I heard of the Ministers definitionit sounded as though she said things like poisonsfall within a definition of an offensive weapon, although it is not entirely clear to me as a layman. Items other than pornography could be harmful to children in schools, such as violent video games. Extreme violent video or computer games could well have been banned by the school and they could clearly cause harm, especially to young children. Teachers should be able to search for such things if children are suspected of having them in their possession.
I was not convinced by the Ministers argumentI suspect she was not convinced eitherbecause she carefully used the phrase cause injury and deliberately missed out the word harm. I am therefore minded to press amendment 209 to a Division. To remind the Committee, it refers to a situation in which a teacher
has reasonable grounds for suspecting that a pupil at the school may have an item that, in the judgement of a member of staff, may present harm to other pupils, staff or teachers.
Before deciding definitively whether to press the amendment to a Division, I should like to talk about what the Minister said when she responded to the debate on amendment 90. She indicated that any item prohibited by the published rules of a school should be the subject of a search if it is suspected that a child has them in their possession. It seemed that she ruled that out in her response to the later debate, despite the fact that it was recommended by Sir Alan Steer, because it might not be reasonable or proportionate to search for items such as mobile phones that had been banned under the school rules under article 8 of the European convention on human rights.
The Home Secretary referred to such situations when she said that some people over-interpreted the Human Rights Act 1998. She said that people erred on the side of cautionjobsworths and others prevented people from, say, holding events on the grounds that they might contravene the Act. The Minister is falling into that trap by saying that giving teachers the power to search for items that have been banned by the school rules might contravene the 1998 Act or the convention. I find that difficult to believe, so I should like look again at what she said.

David Laws: Is the hon. Gentleman hopeful that the Minister will respond to some of the points that were raised, particularly about the legal questions attendant to the proposed amendments and the Governments attitude? It would be enormously helpful to us if the Government put those on the record, not only so that we can make judgments today, but on Report and when the Bill goes to another place.

Nick Gibb: The hon. Gentleman makes a valid point, but alas, I am not hopefuland after seeing the Ministers expression, I am even less hopeful. I would like to think about it further and, perhaps, come back to the subject of whether school rules can be enforced through search powers a little later. For the moment, I would like to press amendment 209, regarding items that might cause harm to pupils, staff or teachers, to a Division. Teachers should be able to search for such items if they suspect that they are in the possession of a pupil at the school.

Question put, That the amendment be made.

The Committee divided: Ayes 3, Noes 8.

Question accordingly negatived.

Christopher Chope: We have now been sitting for over eight hours since we reassembled after the one-hour break for dinner and we have been sitting continuously for over three hours since the last refreshment break. I have been reflecting on the comments which were made following the short break which concluded at 3 am and was designed for discussion through the usual channels. Taking into account the number of amendments and clauses left to the Committee to consider; the time available to complete consideration under the decisions of the House on the programme motion and of the Committees programming sub-committee; the imperative that the Chairman, members and staff involved in supporting the Committees work are entitled to reasonable rest and refreshment to enable them to operate effectively; and the lack of notice of this prolonged sitting, which has meant that my co-Chairman is absent, that the Hansard reporters and the Refreshment Department have been unable to bring in substitutes, that no staff were given notice of this, including the Clerks who have been valiantly supporting the Committee since 9 oclock on Thursday and considering the powers that I have as Chairman to suspend the sitting, I judge that, given all the circumstances that I have outlined and other circumstances, we should suspend the sitting now and reassemble at 8.15 am. I point out to right hon. and hon. Members that the Refreshment Department reopens at 7.30 am for breakfast, which members may wish to take before embarking on what may be another long days deliberations.

Siôn Simon: On a point of order, Mr. Chope. I am grateful for that clarification. I could not help noting that you did not mention taking into account the desires expressed by Labour Front and Back Benchers to make progress with the Billprogress that was not aided by Opposition Members taking more than an hour on the last group of amendments. Nor was it expedited by your decision not to allow the Question to be put some time into that hour. In the light of this very unusual suspension for a very long period of time, which effectively denies us the opportunity to sit through the night, and adjourning the sitting until the morning, can you clarify the precedents for the decision, which is not in line with the advice we received from the Clerk earlier in the evening?

Christopher Chope: The hon. Gentleman raises a point of order of which I can assure him I have taken account. I have also taken into account all the comments of hon. Members, the amount of time that is left for consideration of the items that have yet to be discussed on our agenda and the desire expressed by some Members to carry on sitting indefinitely. I have to take all those issues into account, including precedents and the fact that we are in a completely new situation without precedent, where it is possibleI do not knowthat the Committee will not take advantage of the possibility of sitting on Tuesday so that proceedings will be concertinaed into one very long sitting.
The hon. Member for Birmingham, Erdington may wish to reflect on the fact that there was no need for people to be taken by surprise on this issue. When I speak to my co-Chairman about it, I expect that she will be as surprised as I am, and continue to be, that the fact that this was a possibility was not shared with the Chair. If it had been shared, then many of the problems that I addressed in my remarks, and the conclusions I have reached, could have been avoided. The hon. Gentleman said that we were not going to sit through the night. I am not going to get into semantics, but many people would think that a virtually continuous sitting from 8 pm after the one-hour break until 4.30 am is sitting into the night, although it may not be going right through the night. I will not get involved in issues relating to working time, because the Palace of Westminster is exempt from all that, but I must take into account the sort of factors that lie behind that type of legislation. I think we owe it, even if not to ourselves, to the staff to have some reasonable consideration. Lots of short breaks would not be sufficient if we face the prospect of another eight or 10 hours of deliberation.

Jim Knight: On a point of order, Mr. Chope. I do not wish to delay things very much further. I understand what you are saying and I appreciate the work the Clerks have done. I would appreciate your advice as to whether the time of four hours is your judgment or the advice of the Clerk.

Christopher Chope: Ultimately, whether it is the Speaker, Deputy Speaker or member of the Chairmens Panel, the judgment is a judgment of that person

Siôn Simon: On a point of order, Mr Chope.

Christopher Chope: Order. I am answering one point of order. The hon. Gentleman, who is a Minister, should know better than to interrupt the Chair when he is responding to another point of order. That is the sort of behaviour that should not be tolerated. I put it down to the fact that people are suffering from fatigue.
We are in an unprecedented situation and I am making my judgment. If people disagree with it, they are free to do so, but what they cannot do is challenge the ruling of the Chair. Without further ado, I am going to suspend the sitting until 8.15 am.

Sitting Suspended.